Separation of powers in American History
Subsequently, the framers of the constitution, adopted another principle based on separation of powers, termed as checks and balances under which, each branch can partially limit the operations of the others, as noted in the powers of judicial review.
Background
Also known as trias politician, separation of powers is a governance technique applied by states or republics that are democratic. According to scholars, this form of governance bases its origin in ancient Greece. However, it was later adopted by the Roman republic in its constitution .Based on this technique, the state or nation is divided into branches, these branches include the executive, legislature, and judiciary. Thus according to the constitution, the government of America is fundamentally based on this model, in which powers and responsibilities are divided among the three branches, that is the executive representing the president, the judiciary representing the court and finally the legislative which comprises of the bicameral congress.
Thus, in order to understand the issues of separation of powers, its important to understand, the constitution. According to the concise dictionary of politics (2003), constitution refers to a set of rules that govern the politics of a nation or a sub national body. The American constitution is thus a document, which states the laws governing the state and lists the powers and duties of the government and the rights of people (Randolph, 2003). The first draft of the constitution was drafted in 1787 in Philadelphia at the Constitutional Convention but was not completely absorbed until its ratification in 1789 by the then 13 states, later it was accommodated by the other states. Up to date the constitution has been amended 27 times.
US constitution being the shortest constitution in the world generally comprises of the, Preamble, twenty seven amendments, Articles and a final paragraph that authenticates its enactment by the Philadelphian convention. The preamble, just illustrates the importance of adhering to the precepts of the constitution, and calls upon all parties to respect the constitutional authority.
The First three Articles of the constitution.
The Articles stipulate the powers of the three arms of governments, the rules governing elections and establishment of political parties. The Constitution through the Articles defines every power and responsibility of Congress it reads All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The first Article defines the congress, which includes the Senate and House of Representatives. According to this Article, the two houses shall be equal. Also under this Article, the rules governing the election and qualifications of members of each house are laid down. Section one, gives the Congress power to make rules governing its operation and power to control government. Section 8 establishes that, all powers are the general and exclusive right of the legislature. For instance the Congress shall have powers to make laws, which shall make it possible for other departments, the US government and individuals to execute the powers bestowed upon them. In the same Article, a total of eight limitations on the powers of the congress are stated.
Though not the most powerful branch, the powers vested upon the Congress are enormous. According to the Constitution, each chamber of the Congress has specific powers. Some of the overall powers of the congress include, the power to declare war in case of an act of aggression or any other cause, the power to collect and regulate taxes, the power to promote technological development through encouraging science and technological advancement, the power to impeach the president, to establish courts, establish and maintain the navy, to make rules governing the establishment and functioning of both the navy and the army. The Congress also has power to collect taxes and to regulate the value of the countries currency. However the most important function and power of the Congress is the power to make laws. Any legislation to become law should be introduced into the congress by a member of the congress and subsequently debated and passed by the two chambers. The first stage, usually involves the consideration of the bill by a standing committee. Moreover the standing committees are empowered to amend the bill. Eventually the bill, its debated in congress and if agreed upon, presented to the president, who signs it to become law.
Article two of the Constitution defines the powers of the executive. According to the Constitution this powers are bestowed upon the president. Under section one, the term of office is specified, both for president and vice-president, which is four years. Also qualification of presidential candidate and president are laid down, including the issue of succession. Succession by the vice president can occur in case of presidents impeachment, death, inability to discharge duties and resignation. . In section two the presidents powers are underpinned for instance heshe is Commander in chief of the armed forces, has power to give pardons, has powers to make treaties but with advice of the senate. In this case a two third majority is required. Through the advice of senate the president is also, given powers to appoint Supreme Court judges, ministers and ambassadors, these appointments should be during recess. The president also ensures that laws are executed, has power to adjourn the congress, if a stalemate occurs between the two houses on adjournment. Under section 4, the presidents conduct is addressed and hisher reasons for removal from power, which includes, on grounds of treason, bribery or through impeachments.
Article 3 describes the powers of the judiciary. Under this article there is only one court that is the Supreme Court. This court has power to hear petitions, cases of appeal and deal with all matters of constitutional conflicts.
Separation of Powers in America
According to historians and lawmakers, the concept of separation of powers in the American constitution is attributed to Madison, who during the framing of the constitution advised the Framers of the constitution to adopt it. However the original ideas came from the great French philosopher Baron de Montesquieu (Vile, 1967). Having closely monitored the British model of governance, he presented the idea to the Framers of the Constitution, who were subsequently influenced by Madison to incorporate it.
So what influenced the framers of the constitution to adopt, separation of powers in the constitution Lawmakers argue that, the evils associated to monarchy might have influenced the then framers of the Constitution. At the time, they were aware of the monarchy system which is believed to have bestowed enormous powers to one individual, the king. Another reason might have been the desire to control human nature, (Vile, 1967), as Madison described, men are bound, to be dictated by their passions rather than reason, when excess power is bestowed upon them descanting any hope of justice. However the prime reason was to curb tyranny. Thus its upon this consideration that Madison and federalists took into consideration while seeking to convince the Framers to accept the concept of separation of powers.
However, there was a stalemate over the issue of separation of powers in that the anti federalist argued that, by allowing such model, the Constitution would render one branch more powerful to the other thus resulting to abuse of power. Madison, in countering their argument proposed that a model be adopted in which the branches would intermarry and have a partial influence over the acts of others through a system he called checks and balances. Thus federalism and bicameralism was instituted into the Constitution based on separation of powers and checks and balances. Checks and balance is a system of government under which the three separate arms of government are mandated to check and prevent actions by the other arms and are forced to share powers and responsibilities (.Campbell, 1952).
Its the statement of Lawmakers that, due to evils associated with concentration of powers to one branch, the Framers of the Constitution thus agreed, to distribute power among the three branches of government. That is the executive, the legislative and the judiciary as described in the American constitution. Through out the history of America, that separation of power has always been adhered to, though not to the fullest degree. For instance the case of Hayden in 1952 led to judges of the courts refusing to adhere to a directive by the federal government, in which they were supposed to review, the war pension scheme. In defending their decision, they held that since the task fell on the docket of Secretary of state, an official in the executive, they could not interfere, with the constitutional power bestowed upon the executive. As such, the first three Articles of the U.S. Constitution, state that, the powers of the federal government be divided among the three separate arms of government the executive, legislature and the judiciary branch.
Under the concept of separation of powers, the constitution defines that, each arm is independent, has a separate responsibility and function, and may not interfere or undertake the functions of another branch. Though cogently expressed, the branches cannot function without each other as they are interrelated. Thus they function together in the sense that, they jointly work and cooperate together in ensuring that each branch does not try to assume excess power. This relationship is described as one of checks and balances, where the functions of one branch serve to limit and change the power of another. (Diamond, 1981). Through this ingenious model and system of government, the Framers of our Constitution, sought to promote Liberty and safeguard the nation against any form of tyranny. However despite the framers decision, frictions have continued to exist between the three branches of government.(Campbell,1952)
Under the model of separation of powers, the three arms of government have independent and unique function. For instance this legislative arm of government makes all the laws through legislation of policies introduced into the Congress by members, having been drafted by lobbyists. The executive branch headed by the president is mandated under Article two of the Constitution, to implement the laws. While the judiciary which comprises of the court system, headed by the Supreme Court, interprets the said laws .The taxation system of the government, provides a good example of how powers are separated among the three branches of the federal government. The congress under taxation system passes all the necessary legislations regarding taxes. The executive, that is the president, appoints a director of revenue services, who is responsible for implementing the laws through tax collection. The courts headed by the Supreme courts rule on any legal issues arising from the carrying out of the tax laws.
According to Campbell (1952), the doctrine of separation of powers, also illustrates the difference in qualification, term of service and procedures for electing or appointing officials in each branch of government. Through the three articles, the term of services of each branch officials are stipulated. According to Article two of the constitution, the presidents term of office is stated as four years, also under this Article the procedures and qualifications of a presidential candidate is specified, this is different from officials of the other three branches of government. The age limit under this Article is 35 years and above. Under Article one, the rules governing the election of Congress men is stated and also the rules governing the code of conduct of each member. The constitution thus distinguishes the time and qualification details of each Congress official. Article three also lays down the requirements of Supreme Court judges, the term of service and the reasons for impeachment of any court judge. All this is only attainable in a situation where separation of powers is stated.
Historians argue that for separation of powers to be successful, a system of checks and balance is necessary. Through checks and balance, each branch of government can limit and control the actions of the others. (Vile, 1967) For instance under the concept of judicial review, the supreme court of America ,uses its power to limit the legislative and the executive arms of government and thus ensure separation of powers. The judicial review powers, thus enables the Supreme Court to challenge any actions of the legislative and executive and decide whether they are constitutional or not. If the actions are unconstitutional, the court has the power to declare them null and void.
Since 1803, the Supreme Court has used its powers of judicial review to declare more than 150 acts of the legislative and the executive unconstitutional. In a major historical and phenomenal ruling, the Supreme Court declared the acts of President Truman unconstitutional. In this case, the then president had used his executive authority to take control of Youngstown sheet and Tube Co, a privately owned steel mill. Campbell (1952) states the judicial branch must rule by categories in announcing a general principle that produces result, in a particular case (pg 21). In another case the Supreme Court used its judicial review powers to invalidate the actions of Congress and President Clinton, in which the Congress had passed a law allowing the President to invalidate or reject an issue in an appropriation bill passed by the Congress and signed by the president. In this case the Supreme Court applied the issue of separation of power and argued that the passed bill would violate Article one of the Constitution.
Another aspect of checks and balance is demonstrated in the ability of the president to veto bills passed by the congress. The executive through its powers can decide whether to sign a bill passed in parliament into law or not. By so doing the president can check the actions of the legislative. On the other hand the Congress can make decisions that affect the actions of the legislative. For instance, the president is allowed to make treaties and appoints ambassadors however these powers are limited by the legislative, in the sense that, the appointments should be approved by the congress. Also the power to declare war is vested on the legislative, despite the president being the commander in chief of the armed forces. For instance, during the Vietnam War, the Congress approved, the said war by providing the troops and funding them. Thus according to Campbell (1952) one way approach to easing institutional friction between the executive and legislative branch is legislative veto (p.15)
Separation of powers and democracy
Democracy has often been termed as a government of the people, for the people, by the people. Thus democracy is achievable in the case where the citizens of a country are not oppressed and enjoy their freedoms and rights. Scholars argue that for democracy to prevail, the powers of government should not be vested into the hands of any individual or institution, department or branch of government. Thus under the principle of separation of powers, the principle core values of democracy are established.
The American government has often been praised as a true democracy that ensures liberty and often been called the land where dreams are realized. This has only been achieved as a result of distribution of powers among the different branches of government and by allowing the system of checks and balance. Under this approach and model the government becomes, excessively strong, and capable of carrying out its obligations to the people or citizens, without curtailing their freedom and liberty.
Undemocratic aspect of separation of powers
Critics of separation of powers, argue that, for democracy to prevail, its sometimes relevant to bestow a lot of powers upon one branch of government. They father quip that, sovereignty of one government branch, more so the parliamentary system of government brings power closer to the people, an aspect that the principle of separation of powers does not entail.
In the case of separation of powers where the policy implementation are sometimes influenced by party majority in the congress, the president representing the party with majority Congress members, might collude with the legislature to implement policies which are in favour of their political agendas (Vile,1967). This might prove undemocratic and thus lead to death, of the very core values of constitutional democracy.
Another short coming of the principle of separation of powers is lack of accountability among the different branches of government. According to Vile (1967), separating and dividing the powers between different identities brings about a situation in which each branch cannot account for its actions. For instance, under the American constitution, the president is only responsible to the electorate who get to vote him or her after a period of four years. This is also reminiscent in the congress where members are accountable to the electorate. This is contrally to the parliamentary system where the prime minister has clearly defined powers, he or she is accountable.
Conclusion
Its wise to conclude that, though the issue of separation of powers is not entirely practiced as demonstrated by the existing friction between the various branches of government, its incorporation by the framers of the constitution, helped avert gross abuse of power as demonstrated by some models of government. Thus through checks and balances the true seed of liberty and democracy was sworn into our system, and its these aspects, that have helped to define America as the land of opportunities and freedom.
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