Here's a short essay I wrote for my Government 103 class on the separation of powers.

INTRODUCTION

In 1786, Thomas Jefferson wrote to John Adams, "The first principle of a good government is certainly a distribution of its powers into executive, judiciary, and legislative, and a subdivision of the latter into two or three branches." In this statement, Jefferson is referring to the technique of horizontal distribution of powers, or the separation of powers into three branches within the government, outlined in the Constitution of the United States of America. This feature, along with a vertical division of powers also known as federalism, and a system of checks and balances between the horizontal powers, are integral parts of the modus operandi of the United States government.

Such features are implemented for two major reasons. The first reason that a separation of powers is used in a government is to prevent the corruption of the democracy by inhibiting a single power from gaining excessive power and becoming dictatorial. The second reason for a separation of powers is that a government with separation of powers is more constrained, making it less likely to become tyrannical and more likely to operate within the law.

Since the government is more constrained, an implication of a separation of powers and checks and balances in the United States is that they diminish the efficacy and efficiency of the government because they increase the possibility of governmental paralysis. That is, if there is a disagreement on the fundamental objectives of the government, the entire operation of government could theoretically stall.

Because of the implications involved with separation of powers, there are some "innovations" that the branches of the United States government use in order to become less interdependent on each other and re-balance the powers in their favor. An example of such an innovation is the power of judicial review, which has been stretched to absurd proportions and has essentially given the judiciary the power to unofficially change the law. Another example of such an innovation is the President's ability to issue executive orders on particular issues, which supercede congressional consent and have the same effect as laws.

This essay will examine the reasons and origin of the doctrine of separation of powers in the United States, the implications of a such a system, changes and innovations that have been made to the system over the years, and the implications of those changes to the system. Furthermore, the essay will detail the implications that the doctrine of separation of powers has had on citizens and their rights in the United States.

SEPARATION OF POWERS IN THE UNITED STATES

The first three articles of the Constitution of the United States of America outline the powers of the three branches of government: the legislative, the executive, and the judiciary respectively.

The reason for the separation of powers was exclusively to diminish the arbitrary power of unchecked rulers. However, another reason behind the use of separation of powers is the belief that under a separation of powers, a government is more likely to stay within the rule of law, given each power checks and balances the others. Thus, separation of powers is related to the idea of checks and balances, where the branches have overlapping authority within the United States government, and the people have the rights to criticize the state actions and remove members from office.

ORIGIN OF THE DOCTRINE OF SEPARATION OF POWERS

The idea of separation of powers is a derivative of the ideas of early philosophers Aristotle, Plato, and Niccolò Machiavelli, whose ideas English scholar James Harrington interpreted in his essay Commonwealth of Oceana in 1656, describing a utopian political system with a separation of powers. Another English theorist, John Locke, argued that the executive and legislative powers of government were conceptually different but there was no need for separation, and his ideas did not include judicial powers. The modern idea of separation of powers comes from a French political writer, Baron Montesquieu, who outlined a three-way division of powers in England with Parliament, the king, and the courts. However, Montesquieu believed that a monarch should exercise executive power, not an elected representative, the converse of how the United States government works.

CHANGE IN POWER IN THE LEGISLATIVE BRANCH OVER THE YEARS

The Articles of Confederation, the first constitution of the United States, originally created only a unicameral legislative branch, with no executive and legislative branches. A significant reduction in power occurred in the legislative branch when the Constitution divided the power of the legislative branch, creating an executive and judicial branch.

Over the years, Congress has been trying to demonstrate its independence from the other branches of government. An example is in the Watergate scandal, where Congress asserted its right to investigate allegations of crimes by Nixon. However, the president has retained dominance over the legislative branch since the early 20th century, and by the end of World War II, the presidency was ingrained as the most visible political institution. The growth of the executive branch will be explained in more depth later in the essay.

THE POWER OF JUDICIAL REVIEW

There have been several significant "innovations" created that made changes to the original balance of power in the United States. The first of these innovations was the power of Judicial Review, the power of the courts to review and invalidate governmental actions that are unconstitutional by their interpretation.

The Constitution says nothing of judicial review, but it was anticipated that the courts would have such a power to a certain extent. The writers of the Constitution were aware of such a concept, and even before the Constitution was adopted, state courts struck down laws that they declared unconstitutional. Alexander Hamilton believe that without the power of judicial review, the protection of rights in the Constitution would amount to nothing.

The power of judicial review was clearly established in the decision of Marbury v. Madison, where Chief Justice John Marshall declared that it is the duty of the courts "to say what the law is." In the decision of Cohens v. Virginia, it was made clear that the federal courts also have to review and invalidate state laws that violate the Constitution as well.

The implication of judicial review was that in essence, the Judiciary is able to unofficially change the law. The Supreme Court has overturned over 125 federal statutes and 1200 state laws and municipal ordinances. A significant example of a Supreme Court decision where the Judiciary was able to change laws was Brown v. Board of Education of Topeka, where the court decided that the racial segregation of public schools violated the 14th amendment. Another example is Roe v. Wade, which overturned state laws outlawing abortion. This example is significant not necessarily because the court overturned the laws, but because abortion is an extremely controversial decision. The negative implication here is that justices have been charged with writing their own values into the Constitution. The positive implication here is that judicial review helps to protect the individual rights of people by upholding the Bill of Rights.

THE GROWTH OF THE EXECUTIVE BRANCH OVER THE YEARS

The power of the executive has increased over the years for many reasons. One reason that the executive branch has increased in power is because of the pressure in the late 19th century to the early 20th century to create more regulation of business. This increased the demand for government involvement in protecting workers and regulating business and preventing unfair business practices. Because of this, many government agencies had to be made by Congress and the executive branch to deal with this. This especially became apparent when Franklin Delano Roosevelt introduced the New Deal, containing his plans for reform.

Agencies and departments - bureaucracies - under the executive have grown in number and responsibility, giving the executive more power over the years. The implication of the executive's increased power is that some people, like Republicans and Libertarians, are contrary to those in favor of government involvement. Executive agencies and departments directly affect the people in their decisions, especially those dealing with welfare, commerce, health, and education.

In response to an increase in power of the federal government, there have been attempts to undermine the involvement of the government in the lives of the citizens. These recent attempts in the Republican agenda by the 104th Congress were called, "The Devolution Revolution." Perhaps Congress was also attempting to decrease the power of the executive branch through their shift of power to lower levels of government.
A major "innovation" in the separation of power likewise to judicial review is the power of executive orders. The president has the power of executive orders, where he/she can issue an order that Congress does not have to approve, and has the same effect as law.

An example of this is in March 1995, when Bill Clinton, who was the president at the time, signed an executive order what prohibited the federal government from doing business with companies that hire permanent replacements for workers who are on strike. Labor leaders applauded this because Republicans had the majority in Congress, and feared they were losing ground. On the other hand, the republicans in congress accused the president of attempting to exclude congress from taking part in labor policy decision.

The implications are apparent in this example - since Congress does have the power to approve or disapprove these executive orders, the president essentially is able to bypass checks from the entire legislative branch.

THE NEED FOR SEPARATION OF POWERS: SUPPORTIVE IMPLICATIONS

Despite the negative implications of the separation of powers - such as the possibility of gridlock or standstill between the branches causing governmental paralysis, it is absolutely vital to the government. Almost all democracies have some scheme of separation of powers to some degree. For example, Italy has a separate constitutional court for reviewing cases dealing with constitutional issues.

The need for a separation of powers is largely apparent when the United States' system is compared to countries like China, or Russia, which were controlled by Communist regimes for part of the 20th century. Those governments are despotic and repressive, because they do not have a separation of powers, making it easier for the leaders of such countries to abuse their power. In his Notes on Virginia, Thomas Jefferson wrote:

"A very capital defect in a constitution is when all the powers of government, legislative, executive and judiciary result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government."

CONCLUSION
Separation of powers, despite the changes to the balance of power between the branches over the years, is an integral part of a democracy, of which the United States is a prime example. This interdependence between the branches and system of checks and balances is designed to protect any one branch from gaining too much power and becoming dictatorial. It also ensures that the government stays within the rule of law. Therefore, separation of powers affects all people within the nation.

PRIMARY REFERENCES
The Constitution of the United States of America

SECONDARY REFERENCES
Downs, A. (1996). The Devolution Evolution: Why Congress is shifting a Lot of Power to the Wrong Levels. online Available: http://www.brook.edu/comm/PolicyBriefs/pb003/pb3.htm. (July 1996).

Hansen, Chris. (2001). Thomas Jefferson on Politics & Government. online Available: http://chansen.tzo.com/Subjects/PoliticsLiberty/ThomasJefferson/jeff1070.htm. (01 Aug 2001).

Ladenheim, K. (1999). U.S. Federalism Web Site. online Available: http://www.min.net/~kala/fed/devo.htm. (16 March 1999).

Wayne, S,, Mackenzie, G., O'Brien, D., & Cole, R. (1999) The Politics of American Government. (3rd Edition) New York: Worth Publishers.

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