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The United States Capitol dome as seen from the Supreme Court Building

Separation of powers is a political doctrine originating in the writings of Montesquieu in "The Spirit of the Laws" where he urged for a constitutional government with three separate branches of government. Each of the three branches would have defined powers to check the powers of the other branches. This idea was called separation of powers. This philosophy heavily influenced the writing of the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.

During the Age of Enlightenment, philosophers such as John Locke advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the opinions of the framers of the United States Constitution.

Strict separation of powers does not operate in The United Kingdom, whose political structure served in most instances as a model for the government created by the U.S. Constitution. Under the UK Westminster system, based on parliamentary sovereignty and responsible government, Parliament (consisting of the Sovereign (King-in-Parliament), House of Lords and House of Commons) was the supreme lawmaking authority. The executive branch acted in the name of the King ("His Majesty's Government"), as did the judiciary. The King's Ministers were in most cases members of one of the two Houses of Parliament, and the Government needed to sustain the support of a majority in the House of Commons. One minister, the Lord Chancellor, was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. Therefore it may be seen that the three branches of British government often violated the strict principle of separation of powers, even though there were many occasions when the different branches of the government disagreed with each other.

Some U.S. states did not observe a strict separation of powers in the 18th century. In New Jersey, the Governor also functioned as a member of the state's highest court and as the presiding officer of one house of the New Jersey Legislature. The President of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges. On the other hand, many southern states explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government "separate and distinct."

Legislative power[link]

Congress has the sole power to legislate for the United States. Under the non delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by powers vested in the government by the Constitution.

Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard 23 U.S. (10 Wheat.) 1, 42 (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."

Marshall's words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress could not authorize the president to formulate codes of "fair competition." It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as "just and reasonable," "public interest" and "public convenience" suffice.

Executive power[link]

Executive power is vested, with exceptions and qualifications,^[1] in the President. By law (Section 2.) the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office -- "...with the Advice and Consent of the Senate"-- receive Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed" (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may itself terminate such appointments, by impeachment, and restrict the president. The president's responsibility is to execute whatever instructions he is given by the Congress. Bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission— all quasi-judicial often have direct Congressional oversight.

Congress often writes legislation to restrain executive officials to the performance of their duties, as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative action in Art. I, § 1—requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives—and § 7—requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House—represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 945–951. Further rulings clarified the case; even both Houses acting together cannot override Executive vetos without a 2/3 majority. Legislation may always prescribe regulations governing executive officers.

The Executive Branch is also the dominant voice of the United States in foreign affairs.

Judicial power[link]

Judicial power — the power to decide cases and controversies — is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office during good behavior and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called "constitutional courts."

Congress may establish "legislative courts," which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual and political determinations).

Checks and balances[link]

Executive[link]

The president exercises a check over Congress through his power to veto bills, but Congress may override any veto (excluding the so-called "pocket veto") by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the president may settle the dispute. Either house or both houses may be called into emergency session by the president. The Vice President serves as president of the Senate, but he may only vote to break a tie.

The president, as noted above, appoints judges with the Senate's advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient.

The president is the civilian Commander in Chief of the Army and Navy of the United States. It is generally understood that he has the authority to command them to take appropriate military action in the event of a sudden crisis.^[2] However, only the Congress is explicitly granted the power to declare war per se, as well as to raise, fund and maintain the armed forces. Congress also has the duty and authority to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice, and requires that all Generals and Admirals appointed by the president be confirmed by a majority vote of the Senate before they can assume their office.

Judicial[link]

Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution's Framers (for example, the Federalist Papers mention it). The Supreme Court established a precedent for judicial review in Marbury v. Madison. There were protests by some at this decision, born chiefly of political expediency, but political realities in the particular case paradoxically restrained opposing views from asserting themselves. For this reason, precedent alone established the principle that a court may strike down a law it deems unconstitutional.

A constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding only in the circuit over which the court has jurisdiction.

The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress' power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls.

The Chief Justice presides in the Senate during a president's impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice's role in this regard is a limited one.

Equality of the branches[link]

The Constitution does not explicitly indicate the pre-eminence of any particular branch of government. However, James Madison wrote in Federalist 51, regarding the ability of each branch to defend itself from actions by the others, that "it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."

One may claim that the judiciary has historically been the weakest of the three branches. In fact, its power to exercise judicial review — its sole meaningful check on the other two branches — is not explicitly granted by the U.S. Constitution. The U.S. Supreme Court exercised its power to strike down congressional acts as unconstitutional only twice prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). While the Supreme Court has since then made more extensive use of judicial review, it cannot be said to have as much political power as either Congress or the President.

The first six presidents of the United States did not make extensive use of the veto power: George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive, vetoed seven bills. None of the first six Presidents, however, used the veto to direct national policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed twelve bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of ethnically cleansing Native American tribes ("Indian Removal"); he stated, "John Marshall has made his decision. Now let him enforce it!"

Some of Jackson's successors made no use of the veto power, while others used it intermittently. It was only after the Civil War that presidents began to use the power to truly counterbalance Congress. Andrew Johnson, a Democrat, vetoed several Reconstruction bills passed by the "Radical Republicans." Congress, however, managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted to curb the power of the presidency by passing the Tenure of Office Act. The Act required Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote.

Grover Cleveland worked to restore power to the Presidency after Andrew Johnson's impeachment.

Johnson's impeachment was perceived to have done great damage to the presidency, which came to be almost subordinate to Congress. Some believed that the president would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto Prime Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over four hundred bills—twice as many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who were appointed as a result of the patronage system, replacing them with more "deserving" individuals. The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions. Cleveland steadfastly refused, asserting, "These suspensions are my executive acts ... I am not responsible to the Senate, and I am unwilling to submit my actions to them for judgment." Cleveland's popular support forced the Senate to back down and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure of Office Act that had been passed during the Johnson Administration. Overall, this meant that Cleveland's Administration marked the end of presidential subordination.

Several twentieth-century presidents have attempted to greatly expand the power of the presidency. Theodore Roosevelt, for instance, claimed that the president was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression. Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the Court for the first time struck down a Congressional delegation of power as violative of the doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt's presidency. In response to many unfavorable Supreme Court decisions, Roosevelt introduced a “Court Packing” plan, under which more seats would be added to the Supreme Court for the president to fill. Such a plan (which was defeated in Congress) would have seriously undermined the judiciary's independence and power.

Richard Nixon—whose presidency is sometimes described as "Imperial" (see Imperial Presidency)—used national security as a basis for his expansion of power. He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs). In the specific cases aforementioned, however, the Supreme Court ruled against Nixon. This was also because of an ongoing criminal investigation into the Watergate tapes, even though they acknowledged the general need for executive privilege. Since then, Nixon's successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight. Though such claims have in general been more limited than Nixon's, one may still conclude that the presidency's power has been greatly augmented since the eighteenth and nineteenth centuries.

Views on separation of powers[link]

Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism. In particular, John Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the United States. He attributes the unusually large number of interest groups active in the United States, in part, to the separation of powers; it gives groups more places to try to influence, and creates more potential group activity. He also cites its complexity as one of the reasons for lower citizen participation.

Judicial independence[link]

Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said^{[by whom?]} on one side of this debate that separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues (other than perhaps minor questions), but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial branch as well as to the other branches.

It is said^{[by whom?]} on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the Judicial branch.

An example of the first view is the regulation of attorneys and judges, and the establishment of rules for the conduct of the courts, by the Congress and in the states the legislatures. Although in practice these matters are delegated to the Supreme Court, the Congress holds these powers and delegates them to the Supreme Court only for convenience in light of the Supreme Court's expertise, but can withdraw that delegation at any time.

An example of the second view at the State level is found in the view of the Florida Supreme Court, that only the Florida Supreme Court may license and regulate attorneys appearing before the courts of Florida, and only the Florida Supreme Court may set rules for procedures in the Florida courts. The State of New Hampshire also follows this system.

See also[link]

• Constitution of the Roman Republic
• Commander-in-Chief
• Fourth branch of government
• Signing statement
• The Imperial Presidency
• Unitary executive theory

References[link]

• Davis, Z. (2001). "Presidential Vetoes, 1989–2000."
• Dean, J. W. (2004). "The U.S. Supreme Court and The Imperial Presidency."
• Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation.
• Kunhardt, P. B., Jr., Kunhardt, P. B., III & Kunhardt, P. W. (1999). The American President. New York: Penguin.www.
• Madison, J. (1788). "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts."
• Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008).
• Saikrishna Bangalore Prakash, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol'y 143 (2009).
• Mount, S. J. J. (2003). "Rewriting the Constitution."

External links[link]

• United States Constitution at Wikisource

United States Constitution
Page one of the original copy of the Constitution
Created	September 17, 1787
Ratified	June 21, 1788
Location	National Archives, Washington, D.C.
Author(s)	Philadelphia Convention
Signatories	39 of the 55 delegates
Purpose	To replace the Articles of Confederation (1777)

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The Constitution of the United States is the supreme law of the United States of America. The first three Articles of the Constitution establish the rules and separate powers of the three branches of the federal government: a legislature, the bicameral Congress; an executive branch led by the President; and a federal judiciary headed by the Supreme Court. The last four Articles frame the principle of federalism. The Tenth Amendment confirms its federal characteristics.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in eleven states. It went into effect on March 4, 1789^[1]. The first ten amendments are known as the Bill of Rights. The Constitution has been amended seventeen times (for a total of 27 amendments) and its principles are applied in courts of law by judicial review.

The Constitution guides American society in law and political culture. It is the oldest charter of supreme law in continuous use, and it influenced later international figures establishing national constitutions. Recent impulses for reform center on concerns for extending democracy and balancing the Federal budget.

History[link]

First government[link]

The Articles of Confederation and Perpetual Union were the first constitution of the United States of America.^[2] The problem with the United States government under the Articles of Confederation was, in the words of George Washington, "no money".^[3]

Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back.^[3] No state paid all of their U.S. taxes; Georgia paid nothing. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more.^[3] No interest was paid on debt owed foreign governments. By 1786, the United States would default on the dates the principal came due.^[3]

The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny.^[4]Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates' extortion demands. The Congress had no more credit if another military crisis had required action.^[3]

The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.^[3]

In Massachusetts during Shays' Rebellion, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteer army.^[5] During the upcoming Convention, James Madison angrily questioned whether the Articles of Confederation was a compact or even government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years.^[6] A rumor had it that a "seditious party" of New York legislators had opened communication with the Viceroy of Canada. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.^[7]

Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. When only one member of a state was on the floor, then that state’s vote did not count. If a delegation were evenly divided, no vote counted towards the nine-count requirement.^[8] Individual state legislatures independently laid embargoes, negotiated directly with foreigners, raised armies and made war, all violating the letter and the spirit of the “Articles of Confederation and Perpetual Union”. The Articles Congress had "virtually ceased trying to govern."^[9] The vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin and Rufus King. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.^[10]

Constitutional Convention[link]

On February 21, 1787, the Articles Congress called a convention of state delegates at Philadelphia to propose a plan of government. Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the “sole and express purpose of revising the Articles of Confederation”. The convention was not limited to commerce; rather, it was intended to “render the federal constitution adequate to the exigencies of government and the preservation of the Union." The proposal might take effect when approved by Congress and the states.^[11]

On the appointed day, May 14, only the Virginia and Pennsylvania delegations were present. A quorum of seven states met on May 25. Eventually twelve states were represented; 74 delegates were named, 55 attended and 39 signed. The delegates arrived with backgrounds in local and state government and Congress. They were judges and merchants, war veterans and revolutionary patriots, native-born and immigrant, establishment easterners and westward-looking adventurers. The participating delegates are honored as the Constitution’s “Framers”.^[12]

Drafting the Constitution[link]

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy.

The Constitutional Convention began deliberations on May 25, 1787. The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation. The high quality of the delegates to the convention was remarkable. As Thomas Jefferson in Paris wrote to John Adams in London, "It really is an assembly of demigods."

Delegates used two streams of intellectual tradition, and any one delegate could be found using both or a mixture depending on the subject under discussion, foreign affairs or the economy, national government or federal relationships among the states. The Virginia Plan recommended a consolidated national government, generally favoring the big population states. It used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke emphasizing equity in outcomes^{[citation needed]}. The New Jersey Plan generally favored the small population states, using the philosophy of English Whigs such as Edmund Burke to rely on received procedure, and William Blackstone emphasizing sovereignty of the legislature.

The Convention devolved into a “Committee of the Whole” to consider the fifteen propositions of the Virginia Plan in their numerical order. These discussions continued until June 13, when the Virginia resolutions in amended form were reported out of committee.