How to prevent tyranny: Separation of powers and checks & balances

"The political liberty of the [citizen] is a tranquillity of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another."

- Baron de Montesquieu's "De l'esprit des lois" ("The Spirit of Laws") [published 1748], Book XI, Chapter 6

Montesquieu had some important ideas about how to prevent tyranny (and they're still relevant today)

The U. S. Declaration of Independence owed much to the work of John Locke, the English political philosopher. But the political scientist Donald Lutz said that "If there was one man read and reacted to by American political writers of all factions during all the stages of the founding era, it was probably not Locke but Montesquieu." (Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 190) This is not to deny the importance of Locke, as he was also an enormous influence on the Founding Fathers (see my blog post for evidence of this). Nonetheless, Montesquieu is definitely the author that had the greatest influence on both sides of the ratification debates, and perhaps even on the finished product of the United States Constitution itself. He's almost like a Founding Grandfather of the United States, his influence is so strong. This is why I recently finished reading his most famous work "De l'esprit des lois" ("The Spirit of Laws") in the original French. He was a Frenchman, who wrote his most famous work in 1748 - a book written over a quarter of a century before the American Revolution. This book was one of the most important influences on the Founding Fathers.

Baron de Montesquieu

How to prevent bad government: Keep any one group from getting too much power

Montesquieu is probably best known today for his important theory of a separation of powers in government. Put briefly, this theory is the idea that bad government is best prevented by keeping any one group from getting too much power over the others. James Madison referenced this danger in the Federalist Papers by saying that "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." (Source: Federalist No. 47) Hence, the need for a system of government that divides up these powers as much as possible. This is something that the United States Constitution does by dividing up this power into three branches of government - the legislative, executive, and judiciary. The legislative branch makes the laws, the executive branch enforces the laws, and the judiciary branch judges and interprets the laws, with as little overlap between these three kinds of power as possible. (More on that in a separate post - for now, I will confine myself to talking about the specifics of the theory, at least in basic form.)

5 limits on presidential power that you never heard of

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

- Thomas Paine's "Common Sense" (1776), Chapter III

Impeachment is not the only limit on the president's power

"What's the difference between a president and a king?" This is a question that Americans sometimes ask themselves, and we usually conclude that there are major differences between the two (or at least ought to be). But if you had asked this question at the time of the Constitutional Convention, many Americans would have feared that there wouldn't be much difference between the two under the new Constitution. They might have said that it was too much power to give to one man (like the president), and that powers might be best confined to a larger body like the Congress. They eventually came around to see the presidency as a necessary institution despite these potential hazards, but they still worried greatly about executive power. Moreover, they were wondering how the Congress could check (or stop) the power of the presidency. The most obvious example of a legislative check on the president is the Congress's power to impeach the members of the executive branch - and, most importantly, the president himself or herself. But this is far from their only check on the president's power, since there are a number of others to be found in the Constitution, if you know where to look for them. I will be spending this post discussing just five of them.

King George the Third, the monarch that the American Revolution was (partially) fought against

The tyrannical police state: The worst nightmare of the Founding Fathers

"A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

- Article 4, Section 2, Paragraph 2 of the Constitution

Headquarters of the United States Department of Justice, or "DOJ"

Although the president enforces the laws, they can't punish people without the courts ...

In our Constitution, it says that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States" (Source: Article 2, Section 3). This includes prosecutors and police officers. Many of these laws to be "faithfully executed" authorize particular punishments for various actions, from fines to imprisonment to being executed (depending on the seriousness of the offense, as perceived by the Congress). If the president had carte blanche to enforce these laws passed by Congress, with no limits to this power, he could carry out these punishments anytime that he said these laws were violated - or even at times when they were not. (If, that is, there were no judicial branch to check this power, and require him to prove that these violations actually happened as he claimed they did.) Thus the Constitution created a judicial branch that was as independent as possible from the President and the Congress, so that no one group would possess the power to enforce these laws at their own whim or fancy. This is one of the real bulwarks of our Constitution, and is one of the true guarantees of our liberties. Thus, I wish to spend some time on it in this post, and educate us all about our constitutional rights as American citizens - particularly those found in the Bill of Rights.

Supreme Court of the United States

... so the very existence of the court system is itself a check on the presidency

Specifically, the Constitution said that "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." (Source: Article 3, Section 1) The courts have a certain power to strike down laws passed by the Congress, which is another important power that I should note (at least in passing) before moving on to my main topic, which is judicial restraints on the president and the police force. (I discuss striking down laws in some detail in one of my other blog posts, if you're interested in that subject. This post, by contrast, will be more focused on the Bill of Rights, and on the judicial checks on the executive branch.)

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

Actually, the death penalty IS constitutional (as the Fifth Amendment makes clear)

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

- Coffin et al v. United States (1895), the Supreme Court case which codified the presumption of innocence for people accused of crimes

People are innocent until proven guilty, and do not have to "prove" their innocence

There's a saying in America that is often quoted in these contexts, which is that people are "innocent until proven guilty." This saying is so familiar to Americans that we often take it for granted, I think. We may not always realize how rare it is in the world to have this kind of default assumption. In this country, the burden of proof is on the prosecution - or in civil cases, the "plaintiff" - rather than the defendant. The defendant is not even required to open his or her mouth to "prove" his or her own innocence. This is not written explicitly into our Constitution, but it is implied by a number of amendments, and was codified by the Supreme Court case quoted above. Moreover, a jurist from a previous century named Sir William Blackstone - a man who is quoted in the Federalist Papers - proclaimed that "the law holds, that it is better that ten guilty persons escape than one innocent suffer." (Source: Blackstone's "Commentaries," Book IV, Chapter 27) This doctrine is sometimes known as "Blackstone's formulation" or "Blackstone's Ratio."

William Blackstone

William Blackstone thought it "better that ten guilty persons escape than one innocent suffer"

John Adams expounded on "Blackstone's Ratio" in the "Boston Massacre" trial, when he said that "We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever." (Source: Adams' Argument for the Defense, 3-4 December 1770) When a person really is guilty of a crime (as sometimes happens), this can still make it somewhat difficult to bring criminals to justice, of course. Thus, the police force and prosecutors have to possess a high degree of skill to provide the necessary proof of these actions. But if these protections are not in place (and many countries don't have them), then innocent people are vulnerable to an arbitrary tyranny that can punish them at will; and there are few things that Americans fear more than an absolute government with unlimited power. Thus, there must be a balancing act in any free country between individual protections and criminal justice, where the people are protected against both unlimited government and violent criminals. Thus, it might be helpful to go over some of these constitutional protections from our Bill of Rights.

John Adams, the defense attorney in the "Boston Massacre" trial

The First Amendment: Protecting religion from government (and not the other way around)

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."

- Thomas Jefferson to the Danbury Baptist Association, on January 1, 1802

The most hotly debated sentence in American history

The Constitution has many passages in it that are hotly debated today, and these debates will likely continue for years to come. But if I were asked what is the most hotly debated sentence in American history, my vote might well go to this one: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (Source: First Amendment) This is the Constitution's famous First Amendment, and it is indeed the first of the ten amendments that make up our modern "Bill of Rights." It would also seem to be the first thing that the people of that time wanted to include when they endeavored to list various "rights" in the Constitution via the Bill of Rights, and so one might surmise that these rights need to be understood today by the people who live here.

Thomas Jefferson

Establishment of religion, or "prohibiting the free exercise thereof"

The very first thing that this amendment mentions, I should acknowledge here, is respecting an "establishment of religion." This clause has been sometimes associated with a famous phrase by the American Founding Father Thomas Jefferson, which is "a wall of separation between Church and State." This is a phrase that rings loudly in the ears of atheists today, because of the persecution that they see from the Christian majority surrounding them. Indeed, atheists love to remind society that so many Founding Fathers were actually Deists (rather than Christians), and that they were thus somewhat different from the "Christian majority" surrounding them (which they delight in pointing out often). But between the "establishment of religion" clause and the amendment's first semicolon is one other important phrase - and only one other phrase - which is the part forbidding government from "prohibiting the free exercise" of their religion. This clause has long been associated with the phrase "freedom of religion," which is a phrase that rings loudly in the ears of unabashedly-religious people in the same way; and which is similarly revered as sacred.

United States Bill of Rights

What's the difference between a “democracy” and a “republic”?

"The United States shall guarantee to every state in this union, a republican form of government ... "

- Article 4, Section 4 of the United States Constitution

Is there a difference between a "democracy" and a "republic"?

The meaning of words tends to change over time, and the words "democracy" and "republic" are no different in this respect. For example, if you were to ask Americans on the streets today whether there's a difference between the two words, many would reply that they are the same (or, at least, close to the same), and some dictionaries even define them as synonymous today. Among them is the website of Princeton University, which offers multiple definitions for each word. One of these definitions is even the same for both words, and their website lists the two words as accepted synonyms for each other in this context. Their shared definition, in case you're wondering, is that they are "a political system in which the supreme power lies in a body of citizens who can elect people to represent them" (Source: entry on "democracy" and entry on "republic") The contemporary use of these words is thus somewhat interchangeable, and the common meaning of these words would admit few (if any) distinctions between them.

James Madison

The Founding Fathers thought there actually was ...

Yet there is a historical distinction between the two that our Founding Fathers recognized. One of them even offered these definitions explicitly in the Federalist Papers. These definitions show a distinction between the two in the mind of this particular Founding Father. This distinction existed in his mind long before the Constitutional Convention, even if he had not yet included it in the Federalist Papers. The Founding Father was James Madison, and he essentially said that a democracy was a direct democracy - or in other words, where people vote on everything directly in person. His phrase for a direct democracy was a "pure democracy," and he defined it as "a society consisting of a small number of citizens, who assemble and administer the government in person" (Source: Federalist No. 10). A good example of this system might be Ancient Athens, the most successful city-state within the lost world of Ancient Greece. Madison's definition of a republic, by contrast, was that it was "a government in which the scheme of representation takes place" (Source: Federalist No. 10). In other words, he said, the definition of a republic is where the people elect others to make those decisions for them. Which is better, you might ask? Are there greater dangers in delegating these powers to our elected representatives, or do the greatest dangers come from other sources, like the "tyranny of the majority"?

James Madison

10 “what if” scenarios that could create constitutional crises (in some places) …

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve upon the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President be elected."

- Article 2, Section 1, Paragraph 5 of the original Constitution (which was partially changed by constitutional amendments, as I will describe later here)

The true test of a country is how it handles emergencies ...

The Constitution is well-equipped to handle the routine and the mundane, and the periods of relative stability that have marked most of this country's history. But this country's Constitution is also well-equipped to handle periods of chaos and instability where elected officials die, or resign, or become otherwise ineligible through disability. The true test of a country is sometimes found in how it handles these contingencies, and the other emergencies that it can face in its history. Thus, the Constitution has a number of backup plans about how to deal with these things. Some of them come from the original Constitution itself, and the clauses related to the succession of presidents and other elected officials. But other backup plans come from the amendments that were made since that time; and a review of these things might thus be helpful here, to show how the Constitution handles these unusual emergency situations.

White House