3. 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.
4.
5. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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?
