"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."
- James Madison, in the Federalist Papers (Federalist No. 51)
Some accused the Constitution itself of violating the "separation of powers" doctrine
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. (For more on the basics of what this is, see this
other blog post of mine. This post will focus more on the idea that the Constitution violates it, and how the Father of the Constitution responded to this charge.)
United States Capitol
Why did they think this?
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 that the Framers gave us; showing that in practice, the
legislative,
executive, and
judicial powers are shared amongst the three branches.
James Madison
Response from the Father of the Constitution
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. He describes 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.