Question:Description Political science 3-4 pages essay, need cite at least 4 sources due Friday noon.? Request the main poli

THE SEPARATION OF POWERS IN UNITED STATES OF AMERICA: PAST AND PRESENT

George W. Carey INDEX: I. INTRODUCTION.- II. THE FEDERALIST ON THE SEPARATION OF POWERS.- 2.1. The Constitutional Solution.- 2.2. A Summary Overview.- III. POLITICAL DEVELOPMENTS AND CHANGING THEORETICAL PERSPECTIVES.- 3.1. Changing Constitutional Perspectives and the Rise of the Presidency.- 3.2. Congress and the Growth of Presidential Powers.- 3.3. The President: Prerogative and Federative Powers.- IV. THE JUDICIARY: THEORETICAL PROBLEMS.- V. CONCLUSION AND OVERVIEW. Abstract: The American version of the separation of powers was designed to prevent tyranny (i.e., capricious, arbitrary rule) and to ensure the rule of law by preventing the concentration of all powers in any one branch. That legislators, as well as their family and friends, would be subject to the impartial administration and adjudication of laws which they passed was a key factor in assuring these objectives. While Congress was regarded as the most representative and powerful branch in the system, over the course of American history presidential powers have increased enormously, often at the expense of Congress. The emergence and growth of political parties has facilitated this development so that today the presidency is the predominant branch of government, viewed as representing all the people, not special or narrow interests. In recent years, a new and expansive theory of presidential authority, “the unitary executive theory,” has gained currency; a theory which justifies an even greater concentration of authority in the executive branch. Moreover, the Supreme Court in recent decades, largely through an expansive interpretation of both its function and the language of the Constitution, has assumed new power, again at the expense of Congress. While the Constitution has not been amended to alter the original design, the reality is that the present system does not correspond to that intended by the Framers. Yet, the concerns posed by the Framers about a concentration of power remain. Key Words: The Federalist, president, Congress, Supreme Court, delegation, unitary executive theory, tyranny. I. INTRODUCTION

The Framers of the American Constitution possessed a theoretical and practical understanding of the separation of powers doctrine and what its implementation would entail. To be sure, only a few may have been steeped in English political writings of the 17th and 18th centuries dealing with the intricacies of

Historia Constitucional, n. 10, 2009. http://www.historiaconstitucional.com, págs. 263-295

the doctrine, but most, if not all, possessed a familiarity with Montesquieu’s formulation which incorporated much of this earlier thinking, particularly that of Locke.1 As well, the prior American political experience served to impart a practical understanding of certain of the finer points of the doctrine and its operations. From the early stages of the colonial period, for instance, controversies arose over the proper delineation of legislative and executive functions and duties.2 More significantly, after independence was declared, eleven of the thirteen states in their new constitutions sought to provide for the separation of powers.3 In fact, in the constitutions of six of these states, the doctrine was declared to be an inviolable principle of free government.4

The fact that these states had little success in maintaining the separation of

powers called for in their constitutions did not diminish the deep and widespread regard the doctrine enjoyed.5 The records of the deliberations at the Constitutional Convention reveal that there was never any question that the resulting constitution would embrace a division of functions between three relatively distinct departments of government.6 The failures of the state governments only served to provide instructive lessons for the convention delegates on what additional provisions and precautions would be necessary for a viable and enduring government with divided powers. 1. See Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth Century Political Thought,” 78 American Political Science Review (1984). On Lutz’s showing, Montesquieu was the most widely cited political philosopher in the American founding period. His authority was invoked by both Anti-Federalists and Federalists during the ratification debates. See, for instance, Federalist essays nos 9 and 47. For an excellent treatment of the various versions of the separation of powers doctrine and its evolution in the English political tradition see: W.B. Gwyn, The Meaning of the Separation of Powers, vol. IX, Tulane Studies in Political Science (New Orleans: Tulane University, 1965).

2. For a splendid treatment of separation doctrine, its development and application in America, see M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998), chpt. 6.

3. The two exceptions were the charter colonies, Connecticut and Rhode Island, which continued to operate under their original charters.

4. The most elaborate of these declarations was that in the Massachusetts Constitution of 1780. Article XXX in its “declaration of right” reads to the effect that no branch of government – legislative, executive, or judicial – shall exercise the power of another “to the end it may be a government of laws and not of men.” The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, eds. Oscar and Mary Handlin (Cambridge: Harvard University Press, 1966), 327.

5. For an overview of the failings of the state governments established after the Declaration see Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (Chicago: University of Chicago Press, 1994).

6. Both major plans set before the Convention, the Virginia and Connecticut, incorporated the separation of powers, though in rudimentary form. Neither plan provided the “balance” that was to be found in the final product. See text below.

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While the Constitution Convention wrestled with and resolved many issues

intimately connected with the separation of powers, The Federalist 7 provides a more coherent point of departure for an understanding and appreciation of why’s and wherefore’s of the major provisions relating to the eventual constitutional division of authority. The understanding of the separation of powers that emerges from The Federalist also forms a useful benchmark for identifying and evaluating the changes that have occurred in the relations between the branches and their relative powers over the course of time. Surveying these changes, in turn, leads straightaway to an examination of recurring and unresolved problems that have arisen in practice; problems that have led some authorities to call for constitutional changes that would eliminate the separation of powers altogether. II. THE FEDERALIST ON THE SEPARATION OF POWERS

Many essays in The Federalist touch upon matters related to the functions and powers of the branches, as well as their relationship to one another.8 But a brace of essays, no. 47 through the better part of no. 51, are the most important for understanding the theoretical foundations of the constitutional provisions for the separation of powers. Madison, the author of these essays, begins Federalist no. 47 by taking up the charge of certain Anti-Federalists that there is too much blending of powers in the proposed Constitution which “expose[s] some parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” In so doing, he also acknowledges in no uncertain terms that a separation of the major functions of government is indispensable for securing liberty and avoiding tyranny. If the Anti-Federalist charge be true, Madison concedes, “no further arguments would be necessary to inspire a universal reprobation of the system” since there is, he holds, “no political truth …of greater intrinsic value, or … stamped with the authority of more important patrons of liberty” than that “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.”9 This view, widely shared across the political spectrum of the founding era, unmistakably reflects the influence of Montesquieu’s thought. Beyond pointing to indispensable need for 7. Alexander Hamilton, John Jay, and James Madison, The Federalist: The Gideon Edition, eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2000). All subsequent references to The Federalist are to this edition indicating specific essay followed by page number. The Federalist consists of 85 essays which are widely regarded as the best single source for understanding the theory underlying the Constitution. The authors used the pseudonym “Publius” to hide their identities.

8. Starting with essay no. 52, Publius deals in some detail with the institutions created by the Constitution. He begins with the House of Representatives, then the Senate, moving on finally to the presidency and the courts.

9. The Federalist, 47/249.

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separated powers, however, these essays provide a wider perspective for not only understanding the purposes served by separation – i.e., its role in insuring constitutional republicanism and liberty – but also the difficulties encountered in endeavoring to insure that the constitutional separation will endure. To begin with, what is not widely recognized is that Madison held that the very existence of a concentration of powers constituted tyranny. Tyranny, that is, is not defined as oppressive or unjust use of power, but rather as the mere concentration of the powers. This understanding follows from Montesquieu’s view of political liberty, “a tranquility of mind arising from the opinion each person has of his safety” which, in his opinion, required “the government be so constituted as one man need not be afraid of another.”10 Simply put, an individual could not have “tranquility of mind,” i.e., “political liberty,” if powers were in the same hands because the threat of arbitrary and capricious rule would always be present. On this point, Madison quotes extensively from Montesquieu to indicate how even the union of any two powers could lead to arbitrary and capricious rule in contravention of the rule of law. A merger of legislative and executive powers, for instance, could result in the legislature passing partial or unjust laws with impunity by selectively enforcing them to exclude members of these branches, their families and friends. Other combinations produce the same results: if there be a union of the legislature and judiciary, “‘life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislature,” while a union of executive and judicial powers would allow “the judge” to “behave with all the violence of an oppressor.”11

This understanding of the character of tyranny was closely related to the

view that the separation of powers was essential for the stability and viability of republican government. This much emerges from Hamilton’s observations earlier in The Federalist concerning the “petty republics” of times past whose unrest and instability, as he put it, kept them “perpetually vibrating between the extremes of tyranny and anarchy.”12 Indeed, he contends, had not “the science of politics … received great improvement,” “the enlightened friend of liberty” would have to abandon “the cause” of republicanism.13 Chief among those improvements he cites are “the regular distribution of power into distinct departments; the introduction of legislative balances and checks” (i.e., bicameralism) and “the institution of courts composed of judges” serving “during good behavior.” In short, in these passages there is a recognition that the elements of liberal constitutionalism – i.e., the institutions and processes long associated with divided powers – are essential for the rule of law and the liberty as well as the very survival of popular or republican government.

10. The Spirit of the Laws, trans. Thomas Nugent (New York: Hafner Publishing Co., 1949), bk. XI, sec. 6.

11. The Federalist, 47/251-52.

12. Ibid., 9/37.

13. Ibid., 9/38.

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At another level, that relating to the problem of maintaining the constitutional

separation, a conviction prevailed that the legislature would be the greatest threat, i.e., the branch most likely to usurp the powers and functions of the executive and judicial departments. Madison drives this point home forcefully in Federalist no. 48: “in a representative republic,” in which the executive powers are “carefully limited, both in extent and duration,” but where the representative “assembly …inspired by a supposed influence over the people,” possessing “an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions.”14 Hamilton makes the same observation later in discussing the president’s power of veto where he writes of a “tendency…almost irresistible” on the part of the legislature to “absorb” the other branches. “The representatives of the people, in a popular assembly,” he continues, “seem sometimes to fancy, that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter.”15 This concern over legislative usurpation was, no doubt, fueled by the experiences at the state level. Madison, for instance, in Federalist essay no. 48 quotes extensively from Jefferson’s “Notes on Virginia” concerning the legislative usurpation of executive and judicial powers in that state. In addition, the more indefinite nature of legislative powers and functions compared to those of the executive and judiciary, coupled with the fact that historically the political ends sought through separation involved greater legislative control over and diminution of executive or royal authority, led Madison’s to conclude that, for good or ill, “in republican government, legislative authority the necessarily predominates.”16

That the legislature would most likely be an aggressor in its relations with

the executive and judicial branches played a significant role in Madison’s answer to the question with which he was preoccupied in essays nos. 48, 49, and 50, namely, how to maintain the necessary constitutional separation. In many ways these essays are the richest in revealing the assumptions upon which the entire constitutional edifice rests. Will, he asks, “parchment barriers” – marking out “with precision, the boundaries” of each department in the constitution – serve to contain “the encroaching spirit of power?” Such barriers he finds have “been greatly overrated” by the drafters of the state constitutions; they have not served to prevent the “legislature department” from “every where extending the sphere of its activity and drawing all power into its impetuous vortex.”17 Will appeals to the 14. Ibid., 48/257.

15. Ibid.,, 71/371.

16. Ibid., 51/269.

17. Ibid.,, 48/256-57.

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people when there is an evident breach of the constitutional separation serve the purpose of maintaining the constitutional separation? Again, he answers in the negative for various reasons: such appeals, suggesting defects in the Constitution, would undermine the popular respect for it; they would arouse the “public passions” and thereby dangerously “disturbing the public tranquility.” “But the greatest objection of all,” he contends, is that such appeals would not preserve the constitutional equilibrium; given the number, influence, and prestige of the legislators, the people would most likely take their side. But even if this were not the case, he observes, the popular decision would not “turn on the true merits of the question,” but instead upon partisan considerations. Consequently, he concludes, “passions” and not “reason” would carry the day.18

Would appeals to the people at fixed intervals serve to maintain the prescribed separation? Once again he finds multiple reasons to reject this solution. If the transgressions occur close to the time of appeals, passions will again dominate. If the transgressions be distant from the time of appeal, he concludes, they may have already taken root and “would not be extirpated” or they may have already accomplished their “mischievous effects” before any remedy could be applied. In addition, he notes, the prospect of “distant prospect of public censure” would not serve as an effective deterrent particularly against the encroachments of a numerous assembly.19 2.1. The Constitutional Solution

In Federalist no. 51, clearly taking into account the foregoing considerations, Madison sets forth his solution that rests in part on a blending of powers. In essay no. 47, by way of answering the Anti-Federalist critics, he contends that a high degree of blending is consonant with the separation of powers doctrine. In this connection he observes that British constitution, which served as the model for the “celebrated Montesquieu,” does not provide for “departments … totally separate and distinct from each other.”20 From this Madison adduces that Montesquieu held that only when “the whole power of one department is exercised by the same hands which possess the whole power of another department” are “the fundamental principles of a free constitution … subverted.”21 Clearly Madison believed such a wide latitude of blending necessary since he contends at the outset of essay no. 51 that the “only answer” for “keeping each” of the “constituent parts” “in their proper places” is through “contriving the interior structure of the government.”22 18. Ibid., 49/263-64.

19. Ibid., 50/265.

20. Ibid., 47/250.

21. Ibid., 47/251.

22. Ibid., 51/267.

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Madison also stresses that modification of the pure doctrine of separation of

powers is necessary to secure the establishment of a competent and independent judiciary. The Founders clearly accepted the proposition that “each department should have a will of its own” and the corollary that flowed from this, “that members of each [department] should have as little agency as possible in the appointment of the members of the others.”23 Yet, as Madison points out, the “peculiar qualifications” for the judiciary led them to provide for a mode of selection that would best secure “these qualifications.” At the same time, fully aware that nomination to judicial office by the president and confirmation by the Senate might serve to compromise judicial independence, as Madison relates, they provided for the “permanent tenure” of judges with the end of eliminating “all sense of dependence” on these branches.24 Likewise, familiar with the practices that led to the breakdown of separation at the state level, the Founders also provided that Congress could not reduce the remuneration of judges or the president.

The “great security” against the concentration of powers, as Madison

pictures it, involves providing “those who administer each department, the necessary constitutional means, and personal motives, to resist [the] encroachments of the others.” The “constitutional means” basically come down to weakening the strong, and strengthening the weak. Since the legislature is the predominant branch, vested with virtually all the powers delegated to the national government, “the remedy … is to divide” it “into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of the common functions, and their common dependence on the society, will admit.”25 But the Framers obviously believed that the executive needed strengthening or, as Madison put it, that “it should be fortified” against potential assaults for the legislature. This fortifying came in the form of a qualified veto; one which would require a two-thirds vote in both chambers to override. In keeping with the doctrine of separation of powers, the “primary” purpose to be served by this veto, as Hamilton takes pains to note in essay no. 73, is to enable the executive to repel the encroachments by the legislature on executive powers; its “secondary” use relates to securing good government and neutralizing the excesses of popular government by blocking the passage of “bad laws, through haste, inadvertence, or design.”26

23. The requirement caused serious problems in the Constitution Convention when it came to the mode of electing a president. A major question was how could a president seek another term of office of the he was to be elected by Congress? To gain re-election would he not yield to congressional demands? The eventual solution, the electoral college, eliminated this difficulty.

24. The Federalist, 51/268.

25. This is the principal reason for two houses, though the popularly accepted (but erroneous) view today is that principal reason was to act as a brake on the first.

26. The primary purpose of the veto is all but forgotten in modern text dealing with the American system. Instead, emphasis in placed on the secondary function which ultimately serves to bring into question the Framers commitment to popular government. The same may be said of the

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Madison’s remarks concerning the presidential veto, though brief, are

revealing. He acknowledges that, “at first view,” “an absolute negative” would appear to be “the natural defence with which the executive should be armed.” Indeed, the absolute negative would have been in keeping with Montesquieu’s thinking. But Madison, reflecting the concerns raised in the Constitutional Convention, points out that such a veto power might not be “altogether safe, nor alone sufficient”: “On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused.” He does appear to regard this lack of an absolute veto to be something of a shortcoming when he writes that “this defect of an absolute negative” can perhaps be overcome “by some qualified connexion between this weaker department [the executive], and the weaker branch of the stronger department [the Senate].”27 On this score, it would appear, he believed a bond might develop between the executive and the Senate since they had to cooperate in the performance of important functions and duties such as executive and judicial appointments and treaty making.

These constitutional provisions for the separation of powers would be for

naught lacking the “personal motives,” the second pillar in the solution for maintaining the constitutional partition. What good, for example, is the veto power, if the executive fails to wield it when necessary to protect his constitutional authority? At the outset of Madison’s discussion of personal motives are found the most frequently quoted passages from The Federalist: “Ambition must be made to counteract ambition”; “If men were angels, no government would be necessary”; or “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” These observations point to an underlying strategy, that is, “supplying by opposite and rival interests, the defect of better motives” in order that the constitutional provisions will operate to secure the constitutional separation.28 More specifically, maintaining the division requires that “the interest of the man” be “connected with the constitutional rights of the place.”29 If this connection exists, then, the partition will be maintained, not out of any feeling of civic responsibility or self-restraint, but rather from the motives stemming from institutional interest. The constitutional means, therefore, are a necessary but not sufficient condition for maintaining the constitutional division of authority. Without the appropriate personal motives to preserve institutional integrity and power, they will not serve their purpose. reasons for bicameralism. (See note 25 supra.)

27. Hamilton elaborates upon these considerations in Federalist essay no. 73. He sees advantages in the qualified veto over the absolute in part because executives might be less reluctant to exercise the latter.

28. The Federalist, 51/269.

29. Ibid., 51/268.

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Ultimately, then, the American system of separation of powers rests on the

Framers’ understanding of human motivation and, particularly, that of those seeking and holding office. For instance, Madison, in his account, is short on informing us how officer holders are to be given the requisite “personal motives” or how “opposite and rival interests” are going to be supplied. He simply seems to assume that the mere creation of institutions with different powers would itself be enough to supply these interests and personal motives; that the mere existence of these institutions would be enough to create the “opposite and rival interests” that would keep the system on even keel. In the vernacular of modern times, he understood that politicians would “defend their turf.” 2.2. A Summary Overview

Separation of powers was woven into the Constitution at the Philadelphia Convention. The reasons for this and for the form the separation assumed are clear enough. The Framers sought a system that would observe and preserve the rule of law which they regarded as essential for stability and ordered liberty. To achieve this, they recognized that government would have to be controlled; that those exercising power would not be able to place themselves above the law. These concerns are reflected in Madison’s observation that under the proposed Constitution “oppressive measures” were unlikely simply because representatives “can make no law which will not have its full operation on themselves and their friend, as well as on the great mass of the society.” And, he warns, if the people “tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.”30

While the primary purpose of divided powers was to secure the rule of law

and those values closely associated with it, the Founders knew from their experiences that the legislative branch could not be restrained by a mere paper demarcation of powers. To prevent a tyrannical concentration of powers in the legislative department required precautions some of which are not, theoretically speaking, necessarily connected to the doctrine of separation of powers, the most notable of these being bicameralism and life tenure for judges. A blending of powers, principally that providing for the presidential veto, was also deemed essential to prevent a tyrannical concentration. Because of these provisions, intended to maintain separation and to keep the …

Separation of Powers: An Overview

Matthew E. Glassman

Analyst on the Congress

January 8, 2016

Congressional Research Service

7-5700

www.crs.gov

R44334

Separation of Powers: An Overview

Congressional Research Service

Summary Congress’s role and operation in national politics is fundamentally shaped by the design and

structure of the governing institution in the Constitution. One of the key principles of the

Constitution is separation of powers. The doctrine is rooted in a political philosophy that aims to

keep power from consolidating in any single person or entity, and a key goal of the framers of the

Constitution was to establish a governing system that diffused and divided power. These

objectives were achieved institutionally through the design of the Constitution. The legislative,

executive, and judicial branches of the government were assigned distinct and limited roles under

the Constitution, and required to be comprised of different political actors. The constitutional

structure does not, however, insulate the branches from each other. While the design of the

Constitution aims, through separation, to prevent the centralization of power, it also seeks the

same objective through diffusion. Thus, most powers granted under the Constitution are not

unilateral for any one branch; instead they overlap.

The constitutional structure of separation of powers invites conflict between the branches,

particularly between Congress and the President. The electoral structure of the federal

government provides not only separate bases of authority, but also different bases of authority for

political actors, as well as different time horizons. Likewise, the assignment of powers under the

Constitution is not only overlapping, but also somew

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