essay on theory of separation of powers

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47 , political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier. 1 Footnote The Federalist No. 47 (James Madison) . Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters. 2 Footnote The Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]” The Constitution of Virginia of 1776 , reprinted in 10 Sources and Documents of United States Constitutions 52 (William F. Swindler ed., 1979) . See also 5 id. at 96 . Similarly, the Massachusetts Constitution of 1780 provided: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.” The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention. 3 Footnote The Federalist No. 51 (James Madison) ( “In republican government the legislative authority, necessarily, predominates.” ). See also id. No. 48 . This theme continues to influence the Court’s evaluation of congressional initiatives. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991) . But compare id. at 286 n.3 (White, J., dissenting). Theory as much as experience guided the Framers in the summer of 1787. 4 Footnote The intellectual history of the Confederation period and the Constitutional Convention is detailed in Gordon S. Wood , The Creation of the American Republic, 1776–1787 (1969) .

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed. 5 Footnote See, e.g. , M.J.C. Vile , Constitutionalism and the Separation of Powers (1967) . The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously. 6 Footnote The Federalist No. 47 (James Madison) .

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation, 7 Footnote U.S. Const. art. I, § 7 . but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties. 8 Footnote Id. art. II, § 2, cl. 2 . Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers. 9 Footnote See, e.g. , The Federalist No. 47 (James Madison) ( “[O]ne of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. . . . The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” ). In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue. 10 Footnote Id. Nos. 47–51 (James Madison) .

In the Federalist No. 47 , Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution. 11 Footnote Id. No. 47 (James Madison) . According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 12 Footnote Id. Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty. 13 Footnote Id. Nos. 47–49 . Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 14 Footnote Id. No. 51 . Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 15 Footnote Id.

To achieve the principles articulated by Madison in the Federalist No. 47 , the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance, 16 Footnote U.S. Const. art. I, § 1 . while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach. 17 Footnote Id. art. I, § 7 . The Senate’s role in appointments and treaties provides a check on the President. 18 Footnote Id. art. II, § 2, cl. 2 . The courts are assured independence from the political branches through good-behavior tenure and security of compensations, 19 Footnote Id. art. III, § 1 . and, through judicial review, the courts check the other two branches. 20 Footnote Id. ; Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) . The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches. 21 Footnote U.S. Const. art. I, § 2, cl. 5 ; id. art. I, § 3, cl. 6 . For a more detailed discussion of the separation of powers and checks and balances, see Intro.7.2 Separation of Powers Under the Constitution and Intro.7.1 Overview of Basic Principles Underlying the Constitution.

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separation of powers , division of the legislative , executive , and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.

The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different elements in society such as monarchic , aristocratic , and democratic interests. The first modern formulation of the doctrine was that of the French political philosopher Montesquieu in De l’esprit des lois (1748; The Spirit of Laws ), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament .

Montesquieu’s argument that liberty is most effectively safeguarded by the separation of powers was inspired by the English constitution , although his interpretation of English political realities has since been disputed. His work was widely influential, most notably in America , where it profoundly influenced the framing of the U.S. Constitution . That document further precluded the concentration of political power by providing staggered terms of office in the key governmental bodies.

Modern constitutional systems show a great variety of arrangements of the legislative, executive, and judicial processes, and the doctrine has consequently lost much of its rigidity and dogmatic purity. In the 20th century, governmental involvement in numerous aspects of social and economic life resulted in an enlargement of the scope of executive power, a trend that accelerated after World War II . Some who fear the consequences of that development for individual liberty have favoured establishing means of appeal against executive and administrative decisions (for example, through an ombudsman), rather than attempting to reassert the doctrine of the separation of powers. See also checks and balances .

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V The Separation of Powers

• Published: July 1980
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This chapter discusses the doctrine of ‘separation of powers’, suggesting that it is one of the most confusing in the vocabulary of political and constitutional thought. In relation to the separateness of the judicial power from the legislative and executive branches there is further striking oddity of usage. The separation of powers doctrine has been used inconsistently both to support and to refute the need for judicial invalidation, or quashing, of legislative or executive action.

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Educator Resources

Constitutional Issues - Separation of Powers

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense.

At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics.

In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in Marbury Madison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War ( Dred Scott v. Sanford ), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people.

This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional.

FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired.

Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total.

This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered.

It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost was the alienation of conservative Democrats and the loss of the fight in Congress.

Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place."

One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {A text version of study document is available.}

Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical.

Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require.

This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868.

The Document

Read Transcript

National Archives and Records Administration Records of the Justice Department Record Group 60

Article Citation

Gray, Leslie and Wynell Burroughs. "Constitutional Issues: Seperation of Powers." Social Education 51, 1 (January 1987): 28-30.

• DOI: 10.2307/1342286
• Corpus ID: 140373607

The New Separation of Powers

• B. Ackerman
• Published 2000
• Political Science, Law
• Harvard Law Review

319 Citations

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