Wednesday, June 11, 2014

Do checks and balances conflict with separation of powers?



It might seem strange to hear it today; but during the debates over whether or not to ratify the Constitution as the "supreme law of the land," it was said by the Constitution's opponents that it violated the doctrine of separation of powers - or the idea that power should be separated among multiple branches of government.


United States Capitol

How could this be, you might be asking? We have three branches of government - a legislature, executive, and judiciary - which are separate from each other. The power in our nation is divided between three branches of government, thus maintaining a proper separation of powers between them. Yet there is one aspect in which the Constitution's opponents were correct, which was that there was a system of checks and balances between the branches. This might not seem to conflict at all with separation of powers, but consider an example to illustrate: The president has the power of nominating judges to the Supreme Court, but he cannot actually appoint them unless the legislature approves his choices. Thus, both the executive and legislative branches share in the judicial power by deciding together who gets to wield it. Thus, it cannot truly be said that the powers are totally separate. A similar analogy could be made for every check and balance the Framers gave us; showing that in practice, the legislative, executive, and judicial powers are shared amongst the three branches.


James Madison

So is it true that the Constitution violates the separation of powers doctrine? Well, perhaps not - James Madison said that some deviations from the letter of the doctrine are necessary to preserve the spirit of it. He doesn't use those words exactly; but he does address it in some important writings about the Constitution, which are the Federalist Papers - describing it in some detail how checks and balances are necessary to have a separation of powers. His arguments are instructive to those of us who've ever wondered whether checks and balances conflict with a separation of powers. Thus, I will now turn to his words to explain how they are not only consistent with separation of powers, but necessary to preserve a separation of powers in practice.




Title page of the Federalist Papers (first printing)

Let us begin with Madison's own outline of his argument: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied." (Source: Federalist No. 47, emphasis added)


Baron de Montesquieu

Later in this paper, Madison names the person that both sides considered an authority on this subject: the French philosopher Baron de Montesquieu. In Madison's own words: "The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind." (Source: Federalist No. 47) Both sides considered Montesquieu the authority in this matter, including Madison; and so he needed to show the fence-sitters that checks and balances were consistent with Montesquieu's ideas.


James Madison

Madison starts by pointing out that the government Montesquieu used as a model for this separation was the British government, which had a separation of powers between the king and Parliament. Madison says that "On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other." (Source: Federalist No. 47) In other words, Madison says, there are checks and balances between the king and Parliament as well. Can it thus be said that checks and balances conflict with Montesquieu's teachings? No, says Madison - they are perfectly consistent with them.


Parliament of Great Britain

Many of the more traditional opponents of the Constitution would have said that the thirteen states exemplified this separation of powers. But Madison says that "If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some cases, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." (Source: Federalist No. 47) Many of the state Constitutions explicitly state that the powers must be totally separate and distinct; but all have a system of checks and balances, showing that they are not the radical departure from tradition that the Constitution's opponents of his time made them out to be. The declarations that powers should be distinct "corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention." (Source: Federalist No. 47)


The Constitutional Convention

Madison goes through the state constitutions one by one, to prove his point. Then, in the next part of the Federalist Papers, he says that "unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." (Source: Federalist No. 48) He says that "A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." (Source: Federalist No. 48)

"To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." (Source: Federalist No. 51)


Independence Hall, Philadelphia

"It is evident," Madison says, "that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle, must be admitted." (Source: Federalist No. 51)


Constitution of the United States

Madison then gets to the crux of the argument:

"The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

"It may be a reflection on human nature," Madison says, "that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." (Source: Federalist No. 51)

This is the essence of Madison's argument, and the genius of our Constitution! This is why our Constitution is able to do what many others are not: keep any one group from having too much power. Checks and balances are necessary to keep this concentration of power from happening, and our nation has been greatly blessed by adopting a Constitution that has them.

If you liked this post, you might also like:

The U. S. Constitution

The ratification debates

What are the "Federalist Papers"?

Part of a series about
The Constitution

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
Preamble: The Constitution's mission statement, with some thoughts about separation of powers
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Powers of the executive, and their being subject to impeachment
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Debates over checks & balances: Do they actually conflict with separation of powers?
Debates over states' rights: What power should the states have in the Union?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The Constitution today: Some thoughts about civics education


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