The Doctrine of Separation of powers is that political power should be divided among several bodies as a precaution against tyranny. The ideal is opposed the absolute sovereignty of the Crown, Parliament, or any other body. The blueprint for United States’ separation of powers is laid out in the U.S. Constitution and expanded upon in the Federalist Papers. The checks and balances of the US government involve the horizontal separation of powers among the executive (the Presidency), the legislature (the two houses of Congress themselves arranged to check and balance one another), and the judiciary (the federal courts). There is also a vertical separation between the federal government and the states. Defenders of separation of powers insist that it is needed against tyranny, including the tyranny of the majority. Its opponents argue that sovereignty must lie somewhere, and that it is better, and arguably more democratic, to ensure that it always lies within the same body. The United States wanted to instate a government structured in such a way that each branch was separate but equal. We will see, however, that it is not always a black and white arrangement and that the judicial branch has often found itself in the gray area of sovereignty.
The theoretical reasoning behind the need for separation of powers is laid out by Publius (Jefferson and Madison) primarily in Federalist Papers # 49 –51. In American discourse separation of powers is more of a name than an accurate description. In application, none of the three branches is really separate from the others. This was the argument that James Madison addressed in The Federalist, no 47. The Anti- Federalist charge was that “The several departments are 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.” Madison’s answer was that Montesqueiu, the “oracle” of separation, did not mean that “departments ought to have no partial agency in, or control over, the acts of each other. He meant rather that “the whole power of one department [should not be] exercised by the same hands which posses the whole power of another department.” The merit of “blending,” according to Madison, was that along with bicameralism and federalism it produced a safety net of “checks and balances.”
The founders were haunted by the monarchial system and this idea of checks and balances was designed to cure the evils of that form of government. In addition, the Constitution was an antidote for the “evils of democracy.” The prime purpose was to protect vested interests by such curbs upon the masses as checks and balances, especially judicial review, and central government in which only the House of Representatives was to be popularly elected.
Madison suggested in The Federalist that neither monarchy nor the masses were the motivation for separation of powers but rather human nature, as they understood it. In their view, mankind is led less by reason than by passion. In Federalist no. 15, Alexander Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.” Checks and balances and separation of powers are concerned with checking both minority and majority “factions” that spring from man’s self-interest. In order constrain both majority as well as minority, the founders favored a less efficient government checked and balanced against itself because it seemed safer than the risk of tyranny in a more efficient system.
In the application of the theory of separation of powers to the United States, the US Constitution clearly lays out the duties and jurisdiction of each of the branches. Article I addresses the powers of the legislative branch. Section 1 states that ALL of the legislative Powers granted should be vested in a Congress of the United States, which consists of a Senate and House of Representatives. These powers include a number of varying areas. These range from electoral powers, to issues dealing with the handling of currency and taxes. More applicable to this discussion, however, are the powers in that the Constitution lays out concerning the making of specific types of laws. Section 8 empowers Congress “To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”
Following the listed powers of the legislative branch, Article II tackles the area concerning the executive branch, or the Presidency. Section 2 deals with the details of executive powers. The President becomes, as he was intended, a major player in foreign affairs. The first segment grants the President with the Position of Commander in Chief. This includes the powers to grant Reprieves and pardons for offenses against the United States, except in Cases of Impeachment. More relevant however, are the following segments (Sec. 2-2 through Sec. 3) which more specifically portray the relationship between executive powers and the legislative branch.
Section 2 states that the President shall have the power to make Treaties. It is important to note her that he must do so “by and with the Advice and Consent of the Senate. This is a check that is put on the executive branch by the legislative branch. Again it states that when nominating and appointing Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the United States, the President must seek the Advice and Consent of the Senate. The President also has the powers to fill up all Vacancies that might happen during the recess of the Senate. The Constitution also requires the President to give Information, from time to time, to Congress on the State of the Union. Finally the behavior of the President is to be checked and held accountable by Congress through the impeachment process.
Finally, Article III deals with the judicial powers of the United States. It states that the judicial powers shall be vested in one supreme court, and in such inferior courts as Congress may establish. This becomes a check of Congress of the judicial branch. Judges are to serve as long as they are considered to be in good behavior and that too is to be monitored by the other branches. In addition the income of judicial employees is to be determined by congress.
It seems as if the legislative branch has more power over all the other branches. That is the way it was intended to be. However, in application the judicial branch, which was intended to be the weakest branch, has become surprisingly more powerful over the years. Judicial Review has been the mechanism which has enabled the judiciary to rise in power and in turn check the other two branches more than the reciprocal.
Judicial Review is a distinctive power associated with the Supreme Court that is not specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v. Madison asserted the major principle on which judicial review rests by saying that, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means. This power to interpret the law becomes the determining factor in the most powerful branch of government. The argument against the ability to exercise judicial review is that it gives judges the power to legislate. If the court believes that a law is fundamentally unconstitutional it can rule so thus overturning legislation. Many argue that the court was never intended to have this kind of power and that it interferes with the will of the people to decide what is right and wrong through legislation. This is when the court moves out of the black and white area and into the gray. On the other hand, congress still retains the power to override a Supreme Court decision by passing an amendment, but has only done so in four instances.
America’s institution of judicial review gives the court enormous supervisory power over the other branches of government. It permits the court to define whatever powers of self-defense the other branches have against the judiciary. Therefore, overtime the Supreme Court has acquired, in a way, the jurisdiction to regulate the separation of powers as they see fit.