Here's a short essay I wrote for my Government 103 class on the separation of powers.
In 1786, Thomas Jefferson
wrote to John Adams
, "The first principle
of a good government
is certainly a distribution of its powers into executive
, 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
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
horizontal powers, are integral parts of the modus operandi
of the United
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
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
and checks and balances in the United States is that they diminish the
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
Because of the implications involved with separation of powers
, there are
some "innovations" that the branches of the United States
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
, 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
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
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,
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
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."
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.
The Constitution of the United States of America
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.
Hansen, Chris. (2001). Thomas Jefferson on Politics & Government. online
(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.