This column by ACRU Policy Board member Hans von Spakovsky was published September 12, 2017 by The Inquirer.
Sept. 17 marks the 230th anniversary of the signing of the Constitution, and the beginning of a four-part series on the separation of powers and the first three articles of our founding document. Today’s essay looks at why the separation of powers was important to the Founders and the challenges the concept faces today. Subsequent essays will look at how the powers were divided: Christopher DeMuth, a distinguished fellow at the Hudson Institute, will explore Article I and the legislative branch; Berkeley law professor John Yoo will take on Article II, the executive branch; and former U.S. Court of Appeals Judge Michael McConnell will write on Article III, the judiciary.
The Framers recognized both the benefits and the dangers of an efficient national government. To mitigate the danger, they divvied up power among three branches of government, the principle we call separation of powers.
It was genius — and the arrangement they came up with remains the gold standard for how governing should occur.
Having just fought a long war against what they considered a tyrannical government, the men at the Constitutional Convention were keen to prevent the establishment of what they termed “a democratic tyranny.”
In The Federalist No. 47, James Madison wrote that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” Why? Because 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.”
Dividing powers among different branches of government, he argued in The Federalist No. 51, gives “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”The foremost goal of the Framers, Madison wrote, was to “first enable the government to control the governed; and in the next place oblige it to control itself.” The separation of powers doctrine accomplishes that goal because, in the words of former U.S. Attorney General Edwin Meese, it “frustrates designs for power and at the same time creates an incentive to collaborate and cooperate, lessening conflict and concretizing a practical community of interest among political leaders.”
Complementing the separation of powers doctrine is federalism — the other safety precaution built into the Constitution by the Framers. The Constitution gives limited powers to the national government, and reserves the remaining power of government to the independent, sovereign states of the Union. This arrangement avoids having a centralized, all-powerful national government, and it’s just as essential to the preservation of liberty and freedom as the separation of powers inside the national government.
Anyone who reads the Declaration of Independence can see how the “repeated injuries and usurpations” of the British monarchy led directly to the separation of powers structure established in the Constitution. Consider Article III. It establishes the federal courts as a separate, independent branch; gives their judges lifetime tenure; and makes their selection contingent on the joint agreement of the president and the U.S. Senate.
This arrangement was meant to forestall the tyrannical situation described in the Declaration: that King George III had “obstructed the Administration of Justice” and “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Similarly, Articles I and II assign the legislative branch (Congress) responsibility for passing laws and the executive branch (the president) responsibility for “tak[ing] Care that the Laws be faithfully executed.” Lawmaking and law enforcement are separated to prevent presidents from simply rewriting or ignoring laws they do not like. The Declaration of Independence complained about King George III’s refusing “his Assent to Laws,” forbidding “his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained,” and of “utterly neglect[ing] to attend to those laws,” i.e., refusing to enforce them.
The Constitution gives the president no power over the legislative branch, other than the veto — which can be overridden by the legislators. Yet it does empower Congress to determine the size and scope of the executive branch. This reflects the colonists’ complaints about the British monarch: dissolving legislative bodies; convening them “at places unusual, uncomfortable, and distant”; “erect[ing] a multitude of New Offices, and sen[ding] hither swarms of Officers to harass our people, and eat out their substance.”
Unfortunately, the separation of powers principle has been weakened significantly over the last century. That is not because of a flaw in the principle. Rather, it is due to the legislative branch’s acting beyond the limited powers granted to Congress in Article I; the executive branch’s rewriting, ignoring, or obstructing laws passed by the legislative branch; and the judicial branch’s failing to rein in the president or Congress when they act in this manner. Moreover, the judiciary has seen fit to create “constitutional rights” not actually in the Constitution.
Separation of powers is fundamental to preserving a democratic republic with a government that is effective and efficient and yet not so powerful that it can abuse its power, infringe on liberty, and be unaccountable to the people. It’s a principle that Washington should fully embrace once again.