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Separation of Powers Note to students: The best preparation for taking the reading quiz is to pay close attention to the key terms as you read. Each question in the question banks is directly linked to these key terms and phrases.

Chapter Focus Question: How did the US Constitution’s separation of powers emerge before and during the federal convention?

Section Focus Question: What were Americans’ literal readings of the principle of separation of powers?Key Terms:Montesquieu and the 3 branches of government

Massachusetts Declaration of Rights and separation of powers Locke's Second Treatise of Government and a powerful legislature Montesquieu's views Framers' experiences of the corruption of state legislatures John Locke on parliamentary meddling Americans' views of British government Supremacy Clause

Still, if the federal union was now going to act by adopting laws binding citizens, it had to be reconstructed as a government in the normal sense of the term, with a bicameral legislature and an independent executive and judiciary. That was the great institutional question that the Constitutional Convention faced after the prolonged debate over representation ended on July 16, 1787. In pursuing this task, two sets of influences guided the Framers. One was intellectual and linked to the prevailing idea of separation of powers that was (again) best associated with Montesquieu’s The Spirit of the Laws. The other influence was political and derived primarily from the experience Americans had gained under the new constitutions they had written since independence. Here, too, James Madison’s critique of the abuse of legislative power within the states best illustrated the direction in which American thinking was moving.

Washington as Statesman at the Constitutional Convention, by Junius Brutus Stearns (1856)

The modern conception of separation of powers emerged during the English Civil War era of the 1640s and 1650s. Part of its rationale was to ensure the security of Parliament and its independent capacity to exercise its legislative authority. But as an imperious House of Commons abused that authority after the elimination of the monarchy and the House of Lords, some English thinkers began to conceive that the task of active lawmaking should be confined to limited periods. The other institutions of governance — the executive and its courts — had to be protected from excessive parliamentary meddling.

One leading advocate of this view was the great English philosopher, John Locke (1632-1704), who came of age during the Civil War era. In his Second Treatise of Government, written in the early 1680s and published in 1689, Locke argued vigorously for the principle of legislative supremacy that the Glorious Revolution had just vindicated. But he also created significant space for the idea of executive prerogative, that is, for the idea that the executive necessarily exercises some discretion to decide exactly when and how the law must be enforced, but also ignored. In discussing the separation of powers, Locke identified three forms of power. Two, legislative and executive, seem familiar to modern readers. The third, federative power — which deals with relations with other states — is not. Strikingly absent from Locke’s list is judicial power, which then was viewed as one aspect of executive power, through the king’s courts.

Locke's View of Power

Montesquieu, writing half a century later, was the thinker who made judicial power the third element of domestic governance. His approach to the separation of powers rested on his definition of political liberty, which was one of the highest values in 18th-century political thinking. Our capacity to exercise this liberty, Montesquieu argued, rests on “a tranquility of mind arising from the opinion each person has of his safety.” That security cannot exist when the different powers of government are concentrated in one and the same hands. When the same body can enact, execute, and adjudicate law, individuals will always worry that it will act corruptly, for its own interest, and in defiance of their just rights.

Montesquieu's View of Power

The American revolutionaries gave Montesquieu’s doctrine a literal-minded reading. The classic statement came from Article XXX of the Massachusetts Declaration of Rights:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. There were thus three rigidly distinct forms of power — and liberty would be best secured by keeping them as separated as possible.

Outline of the Separation and Balance of Powers

Section Focus Question: What was Madison’s notion of checking, rather than rigidly separating, powers?Key Terms:Madison's concern with corruption

Madison and the balance of the branches of government Madison's experience in the Virginia assembly Madison and checks on the legislature Checks and balances Madison's fear of the power of the legislature Madison and the separation of powers

Yet this abstract doctrine hardly described how the American constitutions actually functioned. Nor could it easily define the complexities of governmental action in a system dominated by the legislatures. Individuals and communities often submitted petitions seeking the resolution of some grievance to the legislatures, even when these grievances seemed judicial in nature. Governors lacked the ability or influence to resist legislative domination. Usually elected annually by the legislature, lacking a veto over their acts, governors were independent in name only. It was one thing to agree that there were three forms of power to be kept distinct, another to determine where the boundaries of their authority ran, or whether some connections between them might be productive of the public good.

James Madison, once again, emerged as the leading critic of the prevailing understanding. His rethinking of the separation of powers was deeply influenced by his three terms in the Virginia House of Delegates in the mid-1780s. Like all

republicans, Madison believed in legislative supremacy. He regarded the other two branches as the weaker departments. In the 1780s his ideas of executive power were not well formed, and he believed that judges would always be reluctant to challenge the political will of the people’s directly elected representatives. Yet precisely because the legislature seemed so dominant, Madison understood that the great challenge facing republican constitutionalism involved finding ways to modify or check its supremacy.

James Madison, The Federalist, No. 37, 1788

Madison’s approach to the separation of powers rested on two assumptions, one concerned with the sources of legislative supremacy, the other with the problem of neatly classifying different exercises of power. It was a mistake, Madison believed, to presume that the threat of disturbing the separation of powers was evenly distributed across all three departments, as the Massachusetts constitution imagined. In a republic, the legislative power necessarily predominated for two reasons. First, it could always use its rule-making power to “mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.” Second, the people’s representatives would enjoy the closest political connections to their constituents. That popular support would give them “an intrepid confidence” in applying their “enterprising ambition” against the weaker departments.

But Madison had a deeper set of reservations about the very concept of separation of powers. In The Federalist, No. 37, he explained why political phenomena were far more difficult to classify than the objects of observation in other areas of study. That lesson covered both federalism and the separation of powers. No skill in the science of government has yet been able to discriminate and design, with sufficient certainty, its three great provinces — the legislative, executive, and judiciary, he wrote. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.

When Madison wrote this, he was thinking explicitly both of Montesquieu and the American constitution writers of the mid-1770s. What had they really meant when they endorsed the principle of separated powers, he asked in The Federalist, No. 47? Montesquieu had taken the 18th-century British constitution as his guide, while his American acolytes had revealed their working understanding of the principle in the actual details of their constitutions. In both cases, Madison concluded notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. Beyond agreeing that each department had a separate existence, and that one branch of government could not be allowed to wholly dominate another, the general principle of separated powers left ample room for experimentation in allocating specific functions across departmental lines.

Section Focus Question: What kinds of experiments did the Framers put in place that created checks on each branch of government’s power?Key Terms:Federalists vs. Democratic-Republicans

Constitutional separation of executive and legislature powers Experimental approach The president and foreign affairs Judicial review Complexity of the Constitution Checks and balances Madison and the separation of powers

When the Framers assembled at Philadelphia in May 1787, Madison had a pet project that illustrated how far he would go in stretching the principle to deal with real problems of governance. Madison’s great concern was to find ways to improve the quality of legislative deliberation and decision making. He admired a provision of the New York constitution of 1777 that created a joint executive-judicial council of revision armed with a limited veto on legislation. That proposal was part of the Virginia Plan, but the Convention rejected it. Instead the Convention vested the president with a limited veto over legislation, subject to a two-thirds override by both houses of Congress, while recognizing that judicial review would enable the courts to subject legislation to constitutional scrutiny. In this sense, all three branches would have a share in the legislative power.

Shared Legislative Power

Other provisions of the Constitution illustrated the experimental nature of the Framers’ approach. The opening sentence of Article II declared that “The executive power shall be vested in a president of the United States.” This made the president uniquely accountable for the administration of government and uniquely situated to exercise maximum political authority. But what was “the executive power” he had received? Readers of Article I, Section 8, would discover that many powers given to Congress had once been part of the royal prerogative in the British constitution. Now these powers had acquired a more legislative nature. Similarly, the power to make treaties and go to war was also part of the royal prerogative, but now the president needed the consent of the Senate to make treaties (and also appointments to high office) and the consent of Congress to go to war. The president was Commander in Chief of the armed forces, but the essential legislative authority to create and regulate the army belonged to Congress. The American separation of powers, like American federalism, was messy in its origins.

As Madison famously observed in The Federalist, No. 51, the system would work best when individual officeholders identified their own interests with the rights of their own institutions. Ambition must be made to counteract ambition, he wrote. The interest of the man must be connected with the constitutional rights of the place. This presupposed that loyalty to one’s office would transcend one’s commitment to particular positions on particular issues. But in fact the formal separation of powers across the departments quickly led to the invention of a political party system. The natural expectation of both voters and officials was that governments were created to act, not to sit around preventing each other from doing anything. More important, in the 1790s both domestic and foreign issues generated persisting divisions both within the national government and the electorate. Together these created political loyalties that often trumped individual commitments to the rights of any particular institution.

Federalists vs. Democratic-Republicans

Introduction: The US President The US presidency has been controversial among Americans since its creation. Delegates to the Constitutional Convention of 1787 knew they preferred a government with separate legislative and executive powers. But the Framers were not sure how the executive branch should be structured. Too much executive power, and the new government would devolve into the hated tyranny they rebelled against. Too little, and the new government would be listless and feeble, as it was under the Articles of Confederation. Near the convention’s end, they finally turned over the issue to a subcommittee. Over a few days in Philadelphia, Article II of the Constitution was drafted, which laid out the duties and obligations of the president of the United States. .

The draft was hotly debated during the ratification process. Critics argued that it made the president too powerful, and he would soon become a national dictator. But the Constitution with the proposed Article II was ratified by all 13 states. It remains in force to this day with few modifications, and it defines the scope of presidential power. Presidents’ claims of power to influence or make policy continue to inspire debate. Most recently, national controversies have erupted over the use of executive power by both Presidents Barack Obama and George W. Bush.

The draft was hotly debated during the ratification process. Critics argued that it made the president too powerful, and he would soon become a national dictator. But the Constitution with the proposed Article II was ratified by all 13 states. It remains in force to this day with few modifications, and it defines the scope of presidential power. Presidents’ claims of power to influence or make policy continue to inspire debate. Most

recently, national controversies have erupted over the use of executive power by both Presidents Barack Obama and George W. Bush.

Article II is short: about 1,000 words, less than one-fifth as long as this essay. But it is important. It declares that “the executive power” in the US federal government is vested in the president — though it does not define exactly what that power is. Article II also gives the president an important role in lawmaking (he or she can veto bills passed by Congress), directing the military and foreign affairs, and nominating judges. It specifies that the president is elected by the Electoral College, which is only indirectly related to the popular vote. The Framers wanted the president to be responsive to the voting public, but also insulated from rapid changes in public opinion.

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Introduction: The US President The presidency scholar Terry Moe has argued that presidents face intense political pressure to influence or control major changes in public policy. The president is the only political actor in the US with a nationwide constituency (albeit indirect). Presidents are held accountable for the welfare of the US on the largest scale. This accountability matters for both reelection of presidents (and members of their political party) and the historical legacy of an individual president. Therefore, presidents have strong political incentives to try to influence public policy.

Due to these political incentives, many presidents have attempted to use “the executive power” granted them by Article II to influence public policy in the US. Many have succeeded, and changed the course of the nation as a result. Of course presidents are far from alone on the national policy-making stage. No matter how much power presidents (and their advisors) read into Article II, they are perpetually bargaining with Congress to chart the course of public policy. And public opinion is never far from presidential exercise of power. Presidents seek to mobilize public opinion so that Congress will pass programs the president prefers, or support the president’s unilateral actions. This essay will review and analyze presidential power to influence domestic public policy, as exercised through these channels and under these constraints.