Separation of Powers

Separaration of Powers

The purpose of this paper is to discuss the Separation of Powers doctrine built into the Constitution. Discussion will cover the origins of the doctrine, the factors that made it attractive to the founding fathers, and the question of its usefulness in modern America.

Political theorists as far back as Aristotle had discussed the merits of various forms of government. The point had been made over and over again that to have all governmental authority vested in a single person or organization is to make it easy for despots to seize power. The more a society and government aspires to democracy, broad-based suffrage, and respect for individual rights, the more it would need to disperse power over a number of institutions and officials.

The theory was clear, but finding a practical way to apply it was not obvious. Congress under the Articles of Confederation had those aspirations, but found that the way it was attempting to disperse power instead produced paralysis. In fact, the American experience with the Confederation Congress gave the fledgling United States a set of positive reasons for wanting separation of powers, to go along with the negative reasons derived from colonial experience under the British Parliamentary system. There had once been a separation and balance of powers in the British system, at least for the upper classes. As long as the monarch and the House of Lords still had independent power and authority, they were able to counterbalance the House of Commons. But after the British Civil War, when Great Britain had the opportunity to experiment with being a republic, with unitary government, and even with military dictatorship, the Parliamentary system was fundamentally changed. The Restoration of Charles II did not reintroduce a balancing factor. Charles was perfectly clear that he reigned at the pleasure of Parliament. His unfortunate brother James did not understand this, and his obstinacy led directly to the Glorious Revolution: the day when Parliament simply had James arrested and exiled to France. One may suppose that what was most glorious about that revolution is that it was peaceful: not a shot was fired, no one was even injured. (That James later invaded northern Ireland with a French mercenary army is a different issue, most political theorists seem to think.) Parliament next simply hired William of Orange and his bride-to-be, Princess Mary, as co-monarchs, and arranged the glorious spectacle of their arrival in London, royal wedding, and double coronation. It would next hire George I of the House of Hanover. It was this Parliament, whose authority was absolute, that governed the American colonies. Any law it passed was final; there was then no institution that could declare a law passed by Parliament to be ôunconstitutional.ö The only check on its authority was the will of the voters who elected the members of Parliament. This is a major reason why the American colonists made such an issue of their lack of representation in Parliament. The rhetoric against King George III in the Declaration of Independence is a vestige of British custom; it is Parliament that has committed all the outrageous acts agaainst the colonies, and it is Parliament that is being attacked. Americans generally fail to grasp how centralized power had become (and to some extent still is) in the British system. There were and are no state governments in the British system, not for the shires, and not for what had once been independent countries; there is only the national Parliament and tiny local governments at the town level. In the eighteenth century Parliament also wanted there to be no independent legislatures in the colonies, and felt free to override colonial legislative measures at its own pleasure. Of course, the colonial legislatures went ahead and acted independently in almost all local matters, but ParliamentÆs refusal to recognize their authority was another reason why the colonial legislators supported the American Rebellion, as the English called it. In the British Parliamentary system, there is also no distinction between legislative and executive powers. The Prime Minister is elected by the members of the majority party in Parliament, and thus becomes the head of government. The Prime MinisterÆs cabinet functions essentially as the standing Executive Committee of the Parliament. It is structurally impossible for the Prime Minister to have one policy and Parliament another. If a majority of members of Parliament disagree with the Prime MinisterÆs decisions, a vote of no confidence will immediately remove the Prime Minister from office and begin the process of setting up a new government, that is, a new Executive Committee. The British Parliament thus cannot be in a state of deadlock such as sometimes seems to paralyze the American government when the Democrats control Congress and the Republicans have the Presidency, or vice versa. However, there is also nothing in the British system to keep Parliament from pursuing a disastrous policy, as it has in Northern Ireland, whenever its members are overcome by mob psychology. The unicameral Congress created by the Articles of Confederation resembled the British Parliament in not separating the legislative and executive powers. There was supposed to be a balance of power between the interests of the states represented in Congress, as well as between the state governments and the national government. However, what there was in practice was a neutralizing of power: opposing forces or concepts, when embodied in the same persons, instead of having their separate advocates, simply canceled each other out. It thus became clear that there were positive reasons for wanting separation of powers in a new form of American government.

A legislature could do a better job of creating laws if it were not burdened with the task of overseeing their execution. Likewise, an executive branch could be more effective in carrying out laws if its authority were independent of the legislative branch. Similarly, there had to be an independent judiciary that could rule on legality, not only of how laws were carried out, but also of the laws themselves, so that ParliamentÆs trick of passing laws that were unchallengable could not be repeated in the American system. The new American system could not have been unitary, because from the beginning it was clear that one of the structural problems that the new country faced was how to balance the authority of thirteen independent nation-states against the authority of the union that they were jointly creating. The Confederation Congress did not solve this problem because it did not grant enough authority to the central government. Powers that are not equal cannot be balanced, and so cannot be separated: the stronger will always tend to overcome the weaker. One lasting achievement of the Confederation Congress was its provision that every new state to be admitted to the union would have to become fully self-sustaining as an independent nation-state before it could be admitted, so that all states within the union would deal with each other as equals. One brilliant provision of the new Constitution was the compromise that created a bicameral legislature.

The Senate, where each state has two votes, recognizes the original autonomy of the states, whereas the House reflects the actual growth of the population. It was equally brilliant to provide that, whereas the authority of Congress came from the states, the authority of the President would come from the people of the whole union. Their powers would thus be equal, balanced, and separate.

It is sometimes argued that American government would be more efficient, could solve problems more quickly, if there were less separation of powers, if the checks and balances did not slow the wheels of progress. It is not clear how governmental powers could be made less separate, since the principle has been woven so thoroughly into American government at every level. Aside from that, it seems unrealistic to suppose that the human frailties which called for the separation of powers when the Constitution was written have somehow been cured during the last two centuries. The checks and balances and separations of power in the American system have the overall net effect of forcing people to compromise, of preventing extremist approaches to social problems from gaining a foothold in government.

It is sometimes thought that having Congress and the President be of different parties was intended to be one of the checks and balances in government. Not so: the plan was to have them be of the same party. It is also thought that the deadlocks that occur under these conditions are a problem that must be solved, for example, by having the President or a Premier be elected by the majority party in Congress. However, it is actually not obvious that there is any problem to be solved here at all. When the President is of the majority party in Congress, then the compromises that lead to a legislative bill being passed and signed are made between the liberal and conservative members of the majority party. When the President belongs to the minority party, then these compromises are made between the members of the two parties. Although it is commonly thought that Democrats are much more liberal than Republicans, in fact the spectra of liberal and conservative members in each of the two parties are almost identical. (Europeans often comment that America is the only democracy governed by two moderate parties.) There thus seems to be little objective reason for tampering with the current traditional system of separation of powers.
Bibliography Eliot, Charles W., ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York: Collier, 1910.
Bibliography Eliot, Charles W., ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York: Collier, 1910. This valuable volume can be found in many libraries. It gives the texts (sometimes in translation) of important documents that are discussed more often than they are read. There is a freshness to read the Vinland documents and the words of Columbus and Vespucci first reporting their discoveries. It is informative to read the precise wording of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the Six Nations (of the League of the Iroquois). History should when possible be done with primary documents, of course; this volume makes some of them easier to find.

Bibliography: Eliot, Charles W., ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York: Collier, 1910. This valuable volume can be found in many libraries. It gives the texts (sometimes in translation) of important documents that are discussed more often than they are read. There is a freshness to read the Vinland documents and the words of Columbus and Vespucci first reporting their discoveries. It is informative to read the precise wording of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the Six Nations (of the League of the Iroquois). History should when possible be done with primary documents, of course; this volume makes some of them easier to find.