Separation of Powers

Separation of Powers and Checks and Balances Explained

Separation of Powers describes the way in which government is divided into different branches (ex. in the U.S., the legislative, executive, and judicial). Checks and balances describe the powers each branch has to “check” the other branches and ensure a balance of power.[1][2][3][4]

For example, The legislative branch “has the power” to make laws, but the President in the executive branch “has the power” to check the legislative branch by vetoing laws with a Presidential Veto. This creates a balance of separate powers and helps avoid any one branch having too much power.

We explain the separation of powers principle and the concept of checks and balances below. First a quote from James Madison, the founding father who helped ensure a separation of powers for America.

“The accumulation of all powers, legislative, executive and judicial 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” – James Madison, Federalist #51

Separation of Powers and Checks and Balances: Crash Course Government and Politics #3

FACT: Another terms for the Separation of powers principle is “trias politica”(it is a “tripartite”, “trias politica”, or “three part system”). The term was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu in his famous and inspirational work Spirit of the Laws (Madison’s influence and one of the most cited books in his time). Although Montesquieu coined the term and presented the ideas properly, the concept of separating governmental powers in an effort to balance the forces of government can be traced back to the ancient Greece and beyond.

TIP: In the United States we have created a bit of a civil religion out of the concept of the separation of powers, and this makes sense, it is a key to our republic. However, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. This principle is like liberty, not every nation has it, but no nation has a monopoly on it. Both tripartite and bipartite systems are common.

Key Points Related to the Separation of Powers Principal

To properly understand how and why governmental powers are separated and given the ability to check and balance each other’s power, it helps to understand the following points:

  • The concept of both a separation of powers and checks and balances comes from examinations of past governments by philosophers like Montesquieu. It is a liberal concept from the Age of Enlightenment based on the old republics (like Athens and Rome) and later nations like the post-Glorious Revolution Government of England as well.
  • Although the concept is famous in the United States, most governments use this principle today. “Bipartite” and tripartite” systems are common. Their roots stretch back all the way to Aristotle’s “mixed governments” from his Politics. Learn more about the types of governments and the philosophers as historians.
  • In America, the Founding Father James Madison was inspired by Montesquieu, and he drafted the Constitution based largely on his principles.
  • The most basic version of the separation of powers principle denotes three branches of government: the legislative (the part that creates the laws), executive (the part that executes or enforces the laws), and judiciary (the part that judges or interprets the laws).
  • “A system of checks and balances” describes the powers each branch has over the other branches.
  • This concept also applies to bicameral legislatures like those in the U.S. (House and Senate) and U.K. (House of Commons and House of Lords). Any governmental entities that are separate and can check and balance each other, can be seen as an extension of this concept.
  • Under a broader definition, these principles can be applied at the federal, state, and local levels and can be further expanded to refer to all private or public powers within a state and any governing body between states or nations.
  • The idea of a Confederate Republic also comes from Montesquieu, and this too relates to the separation of powers. The first few articles of the United States Constitution describe the structure of government, the branches, and their powers. The federal government is republican (run by representatives of the people and law), the States are a federation (a union of sovereign states), and each state has its own republican government with a separation of state-based executive, legislative, and judicial powers. The legislative branches of the federal and state levels are subdivided into a bicameral house and senate that check each other. The judicial branch is separated into higher and lower courts. The citizens check the branches via voting and other mechanisms in a democratic fashion.
  • Thus, although we commonly refer to the separation of federal powers in America, the general concept is simply the idea of dividing the power of government. We try to avoid despotism and tyranny but decentralizing power. The ways the branches are subdivided and the exact ways in which they check and balance each other differ.

Below we explain the separation of powers principle and all the above points in more detail.

FACT: Montesquieu was one of the most cited authors of Revolutionary America, with as many as 1/4 of all citations at one point, according to legend. The founders clearly all read BOOK XI.: OF THE LAWS WHICH ESTABLISH POLITICAL LIBERTY, WITH REGARD TO THE CONSTITUTION but many seemed to skip over BOOK XV.: IN WHAT MANNER THE LAWS OF CIVIL SLAVERY ARE RELATIVE TO THE NATURE OF THE CLIMATE. That of course is another subject. See “why the founders chose a Republic.”

An image showing the checks and balances (the powers each branch has).

A public domain image showing the checks and balances (the powers each branch has).

Separation of Powers easily explained (explainity® explainer video)

At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary, power; by which means they had so great a weight in the government, as required some other power to balance it. – Montesquieu

The Origin of Separation of Powers and Checks and Balances

As noted above, the separation of powers principle is an idea gleaned from past governments (like EnglandAthens, Sparta, Lycia, and Rome) and works of political philosophy (like Montesquieu’s Spirit of the Laws, Livy’s History of Rome, and Machiavelli’s Livy). It postulates that separating governmental powers into “branches” avoids corruption. Specifically it avoids despotism and tyranny.[5][6]

James Madison, the founding father who drafted the Constitution and Bill of Rights, was heavily inspired by Montesquieu’s Spirit of the Laws in drafting his Virginia Plan. This was the plan on which the United States government is based; as opposed to the opposition’s unicameral New Jersey plan.

In Montesquieu’s book, he describes all the past governments and what the purpose of the laws are in ensuring that government. He specifically notes that a mixed-trading-republic with a separation of powers (like the Roman Republic) has many benefits. He also strongly advocates for a confederate republic, a republic with many states and commonwealths under a central government like Lycia; which is what America is. Montesquieu even calls this government a “united states.”

When we consider the above points, we can see just how important Madison and Montesquieu were to America’s power structure.

1. Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a Supreme Legislative, Judiciary, and Executive. 2. Resolved that the national Legislature ought to consist of Two Branches – Transcript of Virginia Plan (1787)

TIP: Below is the structure of Government as laid out by Madison’s Virginia plan, it uses a separation of powers including a “bicameral” legislature (a legislature with two houses). Notice how the powers can veto (AKA check) each other. Also, notice the state legislatures are bicameral and separated from the federal ones. See why the founders choose a Republic.

madison-virgina-plan

The Branches of Federal Government

As noted above, the three traditional branches of government are legislative (the part that writes the laws), executive (the part that executes the laws), and judiciary (the part that judges the laws).

These branches then check and balance each other by performing different duties, and getting to prevent or approve the actions of the other.

For example, the executive appoints Judges, Judges judge if laws created by the legislative is lawful, and the head of the executive can Veto a law, but only the legislative can create laws. This avoids one entity passing and executing a law in its own favor. Meanwhile, voting and term limits help the citizenry check the government.

These branches of government can be subdivided. Germany uses two heads of state in the executive branch, while the United States creates executive agencies and has a legislative branch with a higher and lower house filled with officials who were elected by the citizenry.

FACT: About four million people work for the Federal Government in the executive alone if we include those who work for the U.S. military. If we consider all local, state, and federal government jobs, we realize that government is a extensive and influential force in society. In America most citizens can participate in government by voting, running for office, or applying for a government job.

A List of all Checks and Balances

The list below shows all the powers each federal branch has. State and local governments have powers as defined [mostly] by state constitutions. The list below is from Constitutional Topic: Checks and Balances:[7]

Legislative Branch

  • Checks on the Executive
    • Impeachment power (House)
    • Trial of impeachments (Senate)
    • Selection of the President (House) and Vice President (Senate) in the case of no majority of electoral votes
    • May override Presidential vetoes
    • Senate approves departmental appointments
    • Senate approves treaties and ambassadors
    • Approval of replacement Vice President
    • Power to declare war
    • Power to enact taxes and allocate funds
    • President must, from time-to-time, deliver a State of the Union address
  • Checks on the Judiciary
    • Senate approves federal judges
    • Impeachment power (House)
    • Power to initiate constitutional amendments
    • Power to set courts inferior to the Supreme Court
    • Power to set jurisdiction of courts
    • Power to alter the size of the Supreme Court
  • Checks on the Legislature – because it is bicameral, the Legislative branch has a degree of self-checking.
    • Bills must be passed by both houses of Congress
    • House must originate revenue bills
    • Neither house may adjourn for more than three days without the consent of the other house
    • All journals are to be published

Executive Branch

    • Checks on the Legislature
      • Veto power
      • Vice President is President of the Senate
      • Commander in chief of the military
      • Recess appointments
      • Emergency calling into session of one or both houses of Congress
      • May force adjournment when both houses cannot agree on adjournment
      • Compensation cannot be diminished
    • Checks on the Judiciary
      • Power to appoint judges
      • Pardon power
    • Checks on the Executive
      • Vice President and Cabinet can vote that the President is unable to discharge his duties

    Judicial Branch

    • Checks on the Legislature
      • Judicial review
      • Seats are held on good behavior
      • Compensation cannot be diminished
    • Checks on the Executive
      • Judicial review
      • Chief Justice sits as President of the Senate during presidential impeachment

Federalism and State and Local Governments

In the United States we have another full level of government at each state which is only partially subordinate to the federal government.

The structure can be described as a federation or confederacy. Federation implies a stronger central government, but both generally mean the same thing (a union of sovereign entities bound by compact). Different states and commonwealths are in a union and are governed not only by their governments but by a central government. This too is a type of separation of power and check and balance.

Each state has three branches including an executive (its governors and other heads), a bicameral legislature, and state judges. Each region also has its own local governments created by the state.

All these powers are granted by the federal constitution to states and then are granted by the state constitution; states then have the power to create local governments.

Citizens use their power when voting, protesting, and directly participating in government. Businesses use theirs when lobbying and participating in the economy. Entities like police enforce laws locally. Other entities like local agencies and advocate groups use power in to pursue their goals. We can say this system of delegation and checks and balances from the lowest local position to the highest federal one is encapsulated by the concept “the separation of power.”

Meanwhile, the whole system described above exists within a “mixed-Republic,” which it is a very democratic form of popular government first noted by Aristotle.

TIP: Federalism is a statement on power sharing between governmental entities. Thus, the concept of separating powers of government is federalist by its nature. With that in mind, federalism generally describes power sharing between states and/or nations more than power sharing between branches.

Federalism: Crash Course Government and Politics #4

TIP: See our separation of powers metaphor for how to go beyond government with this concept.

FACT: At the Treaty of Paris 1783 Britain recognized the colonies as 13 sovereign states, not a federation of United States. We have come a long way, but also the head-butting over Confederacy vs. a federal Union is kind of what the Civil War was about (not that it wasn’t also about slavery and expansion). In truth, we haven’t fully worked that one out yet.

The Body Politic: Rousseau puts it this way in the Social Contract [I’m paraphrasing heavily], all the citizens of a political body (the body politic) are sovereign (have a power within the state). However, not everyone can act at once (that would be chaos). Thus, power is delegated to the government (the part of the state that acts) and then to different “heads” of state and “limbs” (or “branches”) of government (the separation of the powers). This political body can now carry out the general will of the sovereign people and is kept in line through voting (thereby “giving consent to be governed”). In this it is expected that the natural law is upheld within the bounds of civil law. Thus, all citizens of a state enter an implicit social contract in which some amount of natural liberty and equality is necessarily traded for the comforts of the civil state. The separation of powers is probably the most important aspect of this somewhat complex equation. Learn more about the Social Contract and State of Nature, Learn more about liberty, equality, and the laws. Learn more about the types of government: Democracy, Aristocracy, and Monarchy.

The basic forms of government

An illustration of the basic forms of government. Hobbes’ imagery re-worked to show the forms, the body politic, the head(s) of state, and the arm of the executive and legislative. A republic is a type of aristocracy. The U.S. has a democratic spirit, but we aren’t a pure democracy.

IN every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.

It is difficult for the united states to be all of equal power and extent. The Lycian* republic was an association of twenty-three towns; the large ones had three votes in the common council, the middling ones two, and the small towns one. The Dutch republic consists of seven princes of different extent of territory, which have each one voice. Were I to give a model of an excellent confederate republic, I should pitch upon that of Lycia. – Both quotes above are from Montesquieu

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals” – Montesquieu

Citations

  1. separation of powers
  2. Checks and Balances
  3. Separation of Powers with Checks and Balances
  4. SEPARATION OF POWERS — AN OVERVIEW
  5. SEPARATION OF POWERS — AN OVERVIEW
  6. Separation of Powers
  7. Constitutional Topic: Checks and Balances


"Separation of Powers and Checks and Balances" is tagged with: American Politics, James Madison, Left–right Politics, Liberalism and Conservatism, Philosophy of Law, Types of Governments, United States of America, Voting

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