Part 1: What’s So Great About Our Constitution, Anyway?
Essay 13 – Separation of Powers
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of TYRANNY.”
– James Madison, Federalist 47
For the reasons discussed in previous essays such as the problem with factions, and the acknowledgment of human nature‘s more flawed aspects, it was with great intent and deliberation that the framers of the Constitution implemented various forms of the separation of powers.
Every effort was put into combating the impact that accumulated powers in one individual or in one entity of government would lead to tyranny, as suggested in Madison’s quote above.
Therefore, the separation of powers was handled in the following ways:
1. Vertical Separation
This is the separation of powers between levels of government, mainly between the states and the federal government. It was made very clear from the start that in order for such a vast number of diverse people, settled over large swaths of land, to be able to govern themselves, the bulk of powers that affect people’s daily lives need to remain as close to the people as possible, within each state. Only a very limited and specifically enumerated list of powers would be given to the federal government. This separation of powers between the federal and state governments is basically what we refer to as “federalism”. We’ll talk about federalism in greater detail in a future essay.
2. Horizontal Separation
Horizontal separation is the separation of powers within each level of government. This is the three branches of government normally discussed…legislative, executive, and judicial. The federal government, as well as all of the state governments, operate under this model. We’ll cover the specific powers of each branch in future essays.
Maintaining the separation of powers and the proper balance, vertically and horizontally, is crucial for the integrity of our system of government and for protecting the maximum liberty of the people. Once we learn about all of the details about the system as it was designed and the reasons for each part of it, it becomes more clear on how it is a fine tapestry of vigorously debated concepts and ideas, woven together into a system of government never seen before.
But it’s a delicate balance…if any one of those parts of the system is thrown out of whack, the entire tapestry starts to unravel.
Those who argued for the Constitution (the Federalists) and those against (the anti-Federalists) both agreed on the need for the separation of powers.
The inspiration for the separation of powers concept comes from a French philosopher, Baron de Montesquieu, in his most influential book, “The Spirit of Laws”.
The anti-Federalists argued that the Constitution did not follow Montesquieu’s idea of the separation of powers correctly in that it created too much overlap of powers between the three branches of government, so there was not a true, distinct separation.
However, the Federalists held the position that the separation of powers idea from Montesquieu was a great starting point, but it needed to be enhanced by including checks and balances at the same time.
The result was the overlapping of powers, such that one branch could “check” the others in different ways so that no one branch could overpower another.
We’ll discuss the various checks and balances in an upcoming essay, after describing each of the three branches of government and the powers that they have been given by the people.
Where we’ve gone wrong…
Over the years, we have managed to take some actions that have had great adverse consequences concerning the separation of powers.
We have had a destruction of the separation of powers both at the vertical and horizontal levels. The 17th Amendment, which I mentioned previously, changed the way that we elect our Senators from the original method of our State Legislators selecting them (indirect democracy) to a direct popular vote of the people (direct democracy).
The effects of this is a diminishing of the State representation within the federal government.
The Senate was designed to essentially be the voice of each State within the federal government (the House was the People’s voice and the Senate, the State’s voice), which would protect the State’s powers from being taken by the federal government (“Ambition must be made to counteract ambition” – Madison). When that was changed, the federal government indeed systematically started to assume much of the States’ powers, and greatly altered the balance and separation of these powers on the vertical level.
At the horizontal level, the best example of our current problems is the rise of the “administrative state”. This is the bureaucracy within the Executive Branch that has been ever-growing since the federal government has taken over more and more various powers.
What has happened is that the Legislative Branch has turned over much of the legislating to this administrative state (to the Executive Branch). Congress will make a law with general guidance, but then allow the Executive Branch to create all of the specific rules and regulations for it, with the full weight of law.
Within this bureaucracy, they have legislative, executive, and judicial powers in the same hands. Think of the IRS as just one example…they make rules (laws) for the tax code, they enforce those rules with their own IRS agents (executive), and then if you dispute it, they have their own tax court within the IRS (judicial).
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands…”
This is the very tyrannical situation that Madison warned us about.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 14 – The Legislative
To view the previous essay in the series, click this link: Essay 12- Limted Government