The Separation of Powers in United States of America: Past and Present
| Autor | George W. Carey |
| Páginas | 263-295 |
The Framers of the American Constitution possessed a theoretical and practical understanding of the separation of powers doctrine and what its implementation would entail. To be sure, only a few may have been steeped in English political writings of the 17th and 18th centuries dealing with the intricacies of Page 264 the doctrine, but most, if not all, possessed a familiarity with Montesquieu's formulation which incorporated much of this earlier thinking, particularly that of Locke.1 As well, the prior American political experience served to impart a practical understanding of certain of the finer points of the doctrine and its operations. From the early stages of the colonial period, for instance, controversies arose over the proper delineation of legislative and executive functions and duties.2 More significantly, after independence was declared, eleven of the thirteen states in their new constitutions sought to provide for the separation of powers.3 In fact, in the constitutions of six of these states, the doctrine was declared to be an inviolable principle of free government.4
The fact that these states had little success in maintaining the separation of powers called for in their constitutions did not diminish the deep and widespread regard the doctrine enjoyed.5 The records of the deliberations at the Constitutional Convention reveal that there was never any question that the resulting constitution would embrace a division of functions between three relatively distinct departments of government.6 The failures of the state governments only served to provide instructive lessons for the convention delegates on what additional provisions and precautions would be necessary for a viable and enduring government with divided powers. Page 265
While the Constitution Convention wrestled with and resolved many issues intimately connected with the separation of powers, The Federalist 7 provides a more coherent point of departure for an understanding and appreciation of why's and wherefore's of the major provisions relating to the eventual constitutional division of authority. The understanding of the separation of powers that emerges from The Federalist also forms a useful benchmark for identifying and evaluating the changes that have occurred in the relations between the branches and their relative powers over the course of time. Surveying these changes, in turn, leads straightaway to an examination of recurring and unresolved problems that have arisen in practice; problems that have led some authorities to call for constitutional changes that would eliminate the separation of powers altogether.
Many essays in The Federalist touch upon matters related to the functions and powers of the branches, as well as their relationship to one another.8 But a brace of essays, no. 47 through the better part of no. 51, are the most important for understanding the theoretical foundations of the constitutional provisions for the separation of powers. Madison, the author of these essays, begins Federalist no. 47 by taking up the charge of certain Anti-Federalists that there is too much blending of powers in the proposed Constitution which "expose[s] some parts of the edifice to the danger of being crushed by the disproportionate weight of other parts." In so doing, he also acknowledges in no uncertain terms that a separation of the major functions of government is indispensable for securing liberty and avoiding tyranny. If the Anti-Federalist charge be true, Madison concedes, "no further arguments would be necessary to inspire a universal reprobation of the system" since there is, he holds, "no political truth ...of greater intrinsic value, or ... stamped with the authority of more important patrons of liberty" than 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."9 This view, widely shared across the political spectrum of the founding era, unmistakably reflects the influence of Montesquieu's thought. Beyond pointing to indispensable need for Page 266 separated powers, however, these essays provide a wider perspective for not only understanding the purposes served by separation - i.e., its role in insuring constitutional republicanism and liberty - but also the difficulties encountered in endeavoring to insure that the constitutional separation will endure. To begin with, what is not widely recognized is that Madison held that the very existence of a concentration of powers constituted tyranny. Tyranny, that is, is not defined as oppressive or unjust use of power, but rather as the mere concentration of the powers. This understanding follows from Montesquieu's view of political liberty, "a tranquility of mind arising from the opinion each person has of his safety" which, in his opinion, required "the government be so constituted as one man need not be afraid of another."10 Simply put, an individual could not have "tranquility of mind," i.e., "political liberty," if powers were in the same hands because the threat of arbitrary and capricious rule would always be present. On this point, Madison quotes extensively from Montesquieu to indicate how even the union of any two powers could lead to arbitrary and capricious rule in contravention of the rule of law. A merger of legislative and executive powers, for instance, could result in the legislature passing partial or unjust laws with impunity by selectively enforcing them to exclude members of these branches, their families and friends. Other combinations produce the same results: if there be a union of the legislature and judiciary, "'life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislature," while a union of executive and judicial powers would allow "the judge" to "behave with all the violence of an oppressor."11
This understanding of the character of tyranny was closely related to the view that the separation of powers was essential for the stability and viability of republican government. This much emerges from Hamilton's observations earlier in The Federalist concerning the "petty republics" of times past whose unrest and instability, as he put it, kept them "perpetually vibrating between the extremes of tyranny and anarchy."12 Indeed, he contends, had not "the science of politics ... received great improvement," "the enlightened friend of liberty" would have to abandon "the cause" of republicanism.13 Chief among those improvements he cites are "the regular distribution of power into distinct departments; the introduction of legislative balances and checks" (i.e., bicameralism) and "the institution of courts composed of judges" serving "during good behavior." In short, in these passages there is a recognition that the elements of liberal constitutionalism - i.e., the institutions and processes long associated with divided powers - are essential for the rule of law and the liberty as well as the very survival of popular or republican government. Page 267
At another level, that relating to the problem of maintaining the constitutional separation, a conviction prevailed that the legislature would be the greatest threat, i.e., the branch most likely to usurp the powers and functions of the executive and judicial departments. Madison drives this point home forcefully in Federalist no. 48: "in a representative republic," in which the executive powers are "carefully limited, both in extent and duration," but where the representative "assembly ...inspired by a supposed influence over the people," possessing "an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions."14 Hamilton makes the same observation later in discussing the president's power of veto where he writes of a "tendency...almost irresistible" on the part of the legislature to "absorb" the other branches. "The representatives of the people, in a popular assembly," he continues, "seem sometimes to fancy, that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter."15 This concern over legislative usurpation was, no doubt, fueled by the experiences at the state level. Madison, for instance, in Federalist essay no. 48 quotes extensively from Jefferson's "Notes on Virginia" concerning the legislative usurpation of executive and judicial powers in that state. In addition, the more indefinite nature of legislative powers and functions compared to those of the executive and judiciary, coupled with the fact that historically the political ends sought through separation involved greater legislative control over and diminution of executive or royal authority, led Madison's to conclude that, for good or ill, "in republican government, legislative authority the necessarily predominates."16
That the legislature would most likely be an aggressor in its relations with the executive and judicial branches played a significant role in Madison's answer to...
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