Separation of Powers

Many of the Framers of the Constitution were familiar with the works of Plato, Aristotle, and Montesquieu, all of whom called for government authority to be divided into distinct spheres. A balance of power is needed, said the Greek philosopher Plato (ca. 427–347 B.C.E.) in The Laws, to check the possible concentration of power in the hands of one person. Aristotle (384–322 B.C.E.), who studied at Plato’s academy, declared in The Politics: “All constitutions have three elements…. There is one element which deliberates about public affairs; secondly that is concerned with the magistracies…; and thirdly that which has judicial power.” He concluded that “[w]hen they are well-ordered, the constitution is well-ordered….” In The Spirit of the Laws (1748), the French jurist Charles-Louis de Secondat, Baron de La Bréde et de Montesquieu (1689–1755), identified legislative, executive, and judicial functions as separate powers of government under the British constitution.

The delegates to the Constitutional Convention of 1787 had seen that after the Declaration of Independence (1776) was signed, the newly independent states tended to invest their legislatures with the bulk of government powers, thus diluting the important checks and balances needed to protect against improper acts. James Madison, called the “Father of the Constitution,” quoted Montesquieu in essay 47 of The Federalist (1787–88) (see Federalist Papers) to the effect that there can be no liberty where a nation’s legislative and executive powers are fused in one person or body or where the judicial power is not separated from the other two. Later in essay 51 of The Federalist, Madison argued: “Ambition must be made to counteract ambition.” This means “supplying, by opposite and rival interests, the defect of better motives…[with] distributions of power where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.”

The Constitution does not state the principle of the separation of government powers in so many words, but the concept is evident throughout the document, particularly in the fact that Articles I, II, and III deal with, respectively, Congress (the legislative branch), the president (the executive branch), and the courts (the judicial branch). The framers seem to have addressed these three powers as if they were indeed separate physical entities but ones that nevertheless must interact to implement the will of the people in governing the nation; [Page 495]at the same time they provide checks and balances on one another to prevent anarchy or tyranny. The framers’ description of the interaction among the separate powers of government bears some similarity to the previous century’s mathematical works of Sir Isaac Newton (1642–1727), in which he described how the balance of gravitational forces of the sun and the planets acts to keep the dynamic solar system stable and functioning harmoniously.

America’s federal system of government, which creates another form of separation of powers between the national and the state spheres of sovereignty, also contains elements of checks and balances. An example of this is the method used to select the electors of the president through the Electoral College, which is placed in the hands of the state legislatures, not with the national government. The states can also act as a check on the federal government through the requirement that the Senate, which represents the states, approves all federal laws; that it gives its advice and consent to presidential appointments (see Appointment and Removal Power); and that a two-thirds majority approves major treaties. The requirement that proposed constitutional amendments be approved by the states constitutes another check.

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