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SEPARATION OF
POWERS
Unit Five
Origins and Definition
 Separation of Powers is a system of governance in which the executive, judicial, and
legislative ...
Purpose
 The Founders were wary of any one
individual or group of people having too
much power. History had shown them th...
What are the powers of each branch?
What
Checks
and
Balances
are in
place?
Separation of Powers in Action
 U.S. v. Alvarez is an excellent example of how the three branches each exercise
their aut...
Separation of Powers and Federalism
 Although distinct from Separation of Powers, federalism operates according to many
o...
Separation of Powers and Federalism Continued
 Federalism also involves the complex relationships
among the various state...
Criticism of Separation of Powers
 Although cited as one of the fundamental
principles of American democracy and key to
i...
Criticism of Separation of Powers Continued
 Michael Teter, in “Congressional Gridlocke’s
Threat to Separation of Powers,...
Questions for Consideration
 Where does the concept of Separation of Powers come from, and how is it defined?
 What are ...
Separation of powers
Separation of powers
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Separation of powers

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A powerpoint for use in the California We the People Program

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Separation of powers

  1. 1. SEPARATION OF POWERS Unit Five
  2. 2. Origins and Definition  Separation of Powers is a system of governance in which the executive, judicial, and legislative functions are divided, with each acting as a check on the other. Doing so balances the distribution of power in a governing body, thereby preventing tyrannical rule (in theory). Furthermore, some powers are shared amongst the three branches. By sharing powers, it creates a system of checks and balances that limit the ability of any one branch to act unilaterally.  “The Federalists argued that the rights and welfare of all are protected by the complicated system of representation, separation of powers, checks and balances, and federalism that the Constitution created” (WTP 102).  The philosophical concept finds its roots in Ancient Greece, namely in Aristotle’s Politics, as well as in the makeup of the Roman Republic, which was divided into the Senate, Consuls, and Assemblies.  In The Spirit of the Laws, Montesquieu described a tripartite system of governance that was modeled on those of the Roman Republic and the British Constitutional system.  James Madison writes about the importance of Separation of Powers in Federalist #47- 51.
  3. 3. Purpose  The Founders were wary of any one individual or group of people having too much power. History had shown them that the concentration of power in the hands of a few led to a government that failed to account for the welfare of all.  By dividing the powers of government amongst the three branches, The Founders theorized that each branch would act as a “check” on the other two, and would allow for the interests of all to be heard.  Specifically, Separation of Powers and Checks and Balances protects the rights and interests of the minority, prevents tyrannical rule, and encourages compromise and collaboration between the three branches.
  4. 4. What are the powers of each branch?
  5. 5. What Checks and Balances are in place?
  6. 6. Separation of Powers in Action  U.S. v. Alvarez is an excellent example of how the three branches each exercise their authority:  The Legislative Branch – Congress – passed the Stolen Valor Act of 2005, punishing those who misrepresent that they have received high military honors.  The Judicial Branch – the Supreme Court of the United States – ruled in 2012 that the Act was unconstitutional because it infringed on the right to free speech protected by the First Amendment.  The Executive Branch – the Pentagon and the President – took action within a month of the Supreme Court's decision establishing a government-funded national database of medal citations – phased in over time – to enable verification of military honors.  The Legislative Branch – Congress – is considering legislation that is more narrow than the Stolen Valor Act of 2005. The Stolen Valor Act of 2011 would make it a federal misdemeanor for anyone to benefit financially from false claims about military service, records, or awards. That would include receiving health care benefits, government contracts, or jobs reserved for veterans. The modified version of the law provides punishments for those seeking to profit strictly from false military service. Follow the progress of the Stolen Valor Act of 2011.
  7. 7. Separation of Powers and Federalism  Although distinct from Separation of Powers, federalism operates according to many of the same principles:  “In the constitutional arrangement known as federalism power is divided and shared between a central government having nationwide responsibilities and constituent governments having state or local responsibilities” (WTP 147).  In addition to the expressed powers of the national government, the “necessary and proper” clause provided an avenue for expansion into the realm of “implied powers.”  The Tenth Amendment to the Constitution reserves the powers not specifically delegated to the national government “to the states respectively, or to the people.” Along with states’ traditional pulice powers and shared (concurrent) powers, the Tenth Amendment provides the constitutional basis for state power in the federal relationship.
  8. 8. Separation of Powers and Federalism Continued  Federalism also involves the complex relationships among the various states. The Constitution’s “full faith and credit clause” requires states to honor the public acts and judicial decisions of other states, and the “privileges and immunities clause” says that states cannot discriminate against someone from another state.  Federalism also involves some limitations on state authority, particularly involving relationships between state governments. Local governments, while not recognized in the Constitution, are used by states in conducting the activities of government.  For much of American history, what is called “dual federalism” was practiced, with the power of the federal government being somewhat limited to the realm of commerce. From 1930-1970, a form of “cooperative federalism” was practiced in which state and national government worked with one another to create and enforce law. Modern federalism, often called “new federalism,” involves a tug-o-war between state and national governments.
  9. 9. Criticism of Separation of Powers  Although cited as one of the fundamental principles of American democracy and key to its success, some scholars feel that Separation of Powers doesn’t work in practice, especially in the contemporary political landscape. Some common criticisms are that:  Powers are not equally shared. For example, Michael Stokes Paulson, in his article “The Most Dangerous Branch,” suggests that the executive branch—with its implied ability to interpret the law—poses problems for American democracy because it shifts the balance of power. Others also point to instances in which executive power has grown during times of war.
  10. 10. Criticism of Separation of Powers Continued  Michael Teter, in “Congressional Gridlocke’s Threat to Separation of Powers,” argues that modern politics have led to conditions in which the sharing of powers is nearly impossible, with compromise—one of the key tenets of Separation of Powers—often viewed as a weakness rather than a strength.  Some have argued that the judicial branch has tipped the balance of power in their favor through the practice of Judicial Review.  Following the Citizens United ruling, there is a concern that lobbying groups will disrupt the relationship between the legislative and executive branches.
  11. 11. Questions for Consideration  Where does the concept of Separation of Powers come from, and how is it defined?  What are the powers of each branch of government? Are the powers divided equally?  How does the system of checks and balances operate in American government? Has this system proven effective?  What historical examples speak to the strengths of Separation of Powers as a governing philosophy? What examples speak to its weaknesses?  What are some of the potential problems with American Separation of Powers?  How has Separation of Powers evolved over time?  What is the relationship between the concept of separation of powers and American federalism? How is federalism different?

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