The Constitution’s Limited Commitment to Separation of Powers
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.
Part 1.
Introduction–Rather than amend the Articles of Confederation, the Constitutional Convention of 1787 proposed a new structure for the government of the United States. Although the Constitution never uses the term, the model chosen by the Framers was based on the separation of powers. They established three distinct departments of government, building into the constitutional structure a system of departmental checks and balances. The Convention sought to assure that no one department would dominate the new government.
Most Americans then–and most of us today–do not understand the history of the doctrine of separation of powers, the conceptual framework that was built into the 1787 constitutional provisions, or the reasons for the adjustments made to the doctrine that were made in the new Constitution.
In Numbers 47 to 51, the Federalist papers described the structure and limitations featured in the Constitution. In a quest for brevity and to adjust somewhat the Federalist language to modern eyes, in this series, I paraphrase Publius in Number 47 in Part 1, in Number 48 in Part 2, and in Number 51 in Part 3. I have not included Numbers 49 and 50, which explored “external” safeguards that were tried in state constitutions to measure how well-implemented these state constitutions were. To see what the author of these numbers said, please see the originals.
I will follow this series with comments on the so-called “unitary” executive and the famous case of Humphrey’s Executor v. United States, 295 U.S. 869 (1935). Part 1 follows.
Part 1–One of the principal objections to the Convention’s proposal was its supposed violation of the political maxim that the legislative, executive, and judiciary departments ought to be separate and distinct. According to the Federalist, no political truth of greater intrinsic value was stamped with the authority of more enlightened patrons of liberty than the separation of governmental powers–the accumulation of all powers, legislative, executive, and judicial, in the same hands. The collection of power, whether in one individual, a few, or many, and whether hereditary, self-appointed, or elective, could justly be pronounced the definition of tyranny. The maxim on which this doctrine relied was totally misconceived and misapplied by the Constitution’s critics. To form correct ideas on this subject, the Federalist investigated the sense in which the preservation of liberty required that the three departments of power should be separate and distinct.
Montesquieu was the most effective proponent of the doctrine of separation of powers. The British Constitution was to Montesquieu what Homer was to the didactic writers on epic poetry. This great political critic viewed the Constitution of England as the standard or the mirror of political liberty. He delivered–in the form of elementary truths–several characteristic principles of the British system.
Montesquieu observed that the British Constitution by no means required that the legislative, executive, and judicial departments be totally separate and distinct from each other. The executive magistrate in Britain formed an integral part of the legislative authority. He alone had the prerogative of making treaties, which could have the force of legislative acts. The members of the judiciary department were appointed by him, could be removed by him, and formed one of his constitutional councils. One branch of the legislative departments formed another constitutional council, which had judicial power in cases of impeachment, and was invested with supreme appellate jurisdiction in all other cases. The judges were so far connected with the legislative department as to attend and participate in its deliberations, though not admitted to a legislative vote.
From these facts, it may clearly be inferred that in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” Montesquieu did not mean that these departments ought to have no partial agency in or control over, the acts of each other. His meaning amounted to no more than this–that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.
This would have been the case if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or possessed the supreme administration of justice; or if the entire legislative body had possessed the supreme judicial authority or the supreme executive authority. The magistrate in whom the whole executive power resides cannot by himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, nor any legislative function, though they may offer advice to the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature can exercise no executive prerogative, though one of its branches constitutes the supreme judicial magistracy, and another can try impeachments and condemn all subordinate officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning: “[when the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”
Again: “Were the power of judging 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 to be joined with the executive power, the judge might behave with all the violence of an oppressor.”
Among the constitutions of the several States, notwithstanding the emphatic and sometimes unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments have been kept absolutely separate and distinct:
(1) New Hampshire seemed fully aware of the impossibility and inexpediency of avoiding any intermixture whatever of these departments, and qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that claim of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.” The New Hampshire constitution mixed these departments in several respects–their Senate, a branch of the legislative department, is a judicial tribunal for the trial of impeachments; their President, the head of the executive department, is the presiding member of the Senate; and has a casting vote in case of a tie; the executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from members of that department; several of the officers of state are appointed by the legislature; and the members of the judiciary department are appointed by the executive department.
(2) Massachusetts observed a sufficient though less pointed caution in expressing this fundamental article of liberty, declaring “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. Massachusetts goes no farther than to prohibit any one of the departments from exercising the powers of another department, but in the very constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointed by the executive department, and removable by the same authority on the address of the two legislative branches. A number of the officers of government are annually appointed by the legislative department; as the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution violated the rule established by themselves.
(3) New York’s constitution includes no declaration on separation, but clearly appears to have been framed with an eye on the danger of improperly blending the different departments. Nevertheless it gives the executive magistrate partial control over the legislative department, and gives a like control to the judiciary department. It blends the executive and judiciary departments in the exercise of this control. In its council of appointment, members of the legislature are associated with the executive authority, as well as in the appointment of officers, both executive and judiciary. And its court for trial of impeachments and corrections of errors consists of one branch of the legislature and the principal members of the judiciary department.
(4) New Jersey has blended the different powers of government more than any of the preceding. The governor–the executive magistrate–is appointed by the legislature, is chancellor and ordinary, or surrogate of the State, is a member of the Supreme Court of Appeals, and president with a vote of one of the legislative branches. The same legislative branch acts as legislative council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department, and removable by one branch of it, on the impeachment of the other.
(5) Pennsylvania empowers its legislature to elect the head of the executive department. In conjunction with an executive council, the president appoints the members of the judiciary department, and he forms a court of impeachment for trial of all officers, judiciary as well as executive. Judges of the Supreme Court and justices of peace seem to be removable by the legislature. The executive power of pardoning in certain cases belongs to the legislature. The members of the executive council are made EX-OFFICIO justices of peace throughout the State.
(6) Delaware provides that the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The chief executive with six others appointed by each of the legislative branches constitutes the Supreme Court of Appeals. The chief executive is joined with the legislative department in the appointment of other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace. The members of one legislative branch are ex-officio justices of the peace; as are also members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachment. All officers may be removed by the legislature.
(7) Maryland adopted the separation maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Still Maryland’s Constitution makes the executive magistrate appointable by the legislative department; and the members of the judiciary appointable by the executive department.
(8) Virginia is still more pointed on this subject. Her Constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercises the powers properly belong to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.” Yet the chief magistrate and his executive council are appointable by the legislature. Two members of the council are triennially displaced at the pleasure of the legislature. All the principal offices, both executive and judiciary, are filled by the legislature.
(9) North Carolina’s Constitution declares “that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other,” but the legislative department appoints the executive chief, as well as the principal officers within both the executive and judiciary departments.
(10) South Carolina’s Constitution makes the executive magistracy eligible through the legislative department, which appoints the members of the judiciary department, including justices of the peace and sheriffs. The legislature appointments officers in the executive department, down to captains in the army and navy of the State.
(11) Georgia’s Constitution declares “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” but the executive department is filled by appointments of the legislature. The executive prerogative of pardon is exercised by the legislature, and justices of the peace are appointed by the legislature.
(12-13) the constitutions of Rhode Island and Connecticut were not covered by Publius, because they were formed before the Revolution and before the principle of separation became an object of political attention.
In citing these situations–in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct–Publius did not mean to be regarded as an advocate for the particular organizations of the several State governments. The fundamental principle under consideration was violated by too great a mixture of powers and their consolidation. But in no instance was a complete separation delineated on paper. What Publius wished to evince was that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, was warranted neither by the real meaning central to that maxim by its author, nor by the sense in which it had been understood in America.
Part 2.
This is the second in a three-part series on the incorporation of a limited version of separation of powers in the United States Constitution. This part paraphrases Federalist, Number 48, which focuses on the blending of the powers of government.
Part 2–After explaining that the concept of separation of powers does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other, Publius next demonstrated that the departments must be so connected and blended as to give each a constitutional control over the others. The degree of separation which the maxim required–as essential to a free government–can never in practice be duly maintained.
The powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. And none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. Power is of an encroaching nature, and ought to be restrained from passing the limits assigned to it. After identifying the several classes of power–as they may in their nature be legislative, executive, or judiciary–the next task is to provide some practical security for each against the invasion of the others.
The challenge is what that limiting security ought to be. Will it suffice to mark precisely the boundaries of these departments in the Constitution and to trust the written barriers against the encroaching spirit of power? This appears to have been the approach of the compilers of most of the American state constitutions. But experience assures that some more adequate defence is indispensably necessary to protect against the powerful members of the government. The legislative departments everywhere extend the sphere of their activity and draw all power into its impetuous vortex.
While the founders of the state republics displayed wisdom, they made mistakes that must be pointed out. They focused on the danger to liberty from an hereditary magistrate combined with an hereditary legislative authority. They did not identify the danger from legislative usurpations. Assembling all power in the same hands must lead to the same tyranny that is threatened by executive abuses.
It is not just a king that we should worry about. A government that places power in the hands of an hereditary monarch is justly regarded as dangerous and should be watched with a zeal for liberty. In a democracy–where the multitude of people exercise legislative functions in person–the concerted measures and ambitious intrigues of executive magistrates may well become apparent, particularly in an emergency. However, in a representative republic, where the executive is carefully limited, both in the extent and duration of its power, the danger may come from excessive legislative power. The people ought to indulge their jealousy and exhaust their precautions against legislative abuses.
The legislative department under the state constitutions has a superiority in our state governments from other circumstances. The constitutional powers of a legislature, being at once more extensive and less susceptible of precise limits, can readily mask encroachments on the other departments. Often, a question arises in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. Executive power is restrained within a narrower compass and is simpler in its nature. Judicial power has more certain limits. Projects of usurpation by either of these departments would immediately betray and defeat themselves. And the legislative department alone has access to the pockets of the people; in some constitutions in has full discretion and a prevailing influence over the pecuniary rewards of those who fill the other departments. A dependence is thus created in the latter, which gives still greater facility to encroachments of the former.
While every State in the Union has examples of this danger, the experience of two states can serve as examples. Virginia is a State which has expressly declared in its constitution that the three great departments ought not to be intermixed. This according to Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In his “Notes on the State of Virginia,” he said at page 105: “All the powers of government, legislative,executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . As little as will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded in free principles, but in which the powers of government should be so divided and balanced among the several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.
For this reason, the convention which passed the ordinance of government, laid its foundations on this basis, that the legislative, executive, and judiciary department should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judicial controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.”
Pennsylvania, the second state example, has the Council of Censors, which has a duty “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. “ The council compared the legislative and executive proceedings with the constitutional powers of these departments. From the facts enumerated it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances.
A great number of laws had been passed, violating without any apparent necessity, the rule requiring that all bills of a public nature be previously printed for the consideration of the people. And this was one of the precautions chiefly relied on by the constitution against improper acts of the legislature. The constitutional trial by jury was violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly required to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn with legislative cognizance and determination. These examples are recorded and public.
Pennsylvania’s executive department frequently breached its constitution. First, a great proportion of the instances were either immediately produced by the necessities of war, or recommended by Congress or the commander-in-chief. Secondly, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department. Thirdly, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it, making it more like an executive council. And because it was exempt from the restraint of an individual responsibility for the acts of the body, unauthorized measures would be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations is that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
Part 3.
This is the third in a three-part series on the incorporation of a limited version of separation of powers in the United States Constitution. This part examines the method chosen by the Convention for maintaining a proper separation of powers in a government. This part paraphrases Federalist, Number 51.
Part 3–After reviewing and rejecting the alternative approaches to assuring the viability of separation of powers in Numbers 49 and 50, Publius asked this question about the proposed Constitution in Federalist, Number 51: To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer is that because all exterior provisions are inadequate, the solution must be by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
To lay a due foundation for separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own. Consequently, the Constitution should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority–the people–through channels having no communication whatsoever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it.
Some deviations, therefore, from the principle must be admitted. In the make-up of the judiciary department, in particular, it might be inexpedient to insist rigorously on the principle. First, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications. Second, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments of their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of several powers of the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others. The provision for the defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections of human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distribution 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–that the private interest of every individual may be a check on the other–that the private interest may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
If the principles on which these observations are founded is just and they are applied as a criterion to the several State constitutions, and to the federal Constitution, it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are two considerations particularly applicable to the federal system in America
First. In a single republic, all the power surrendered by the public is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided into two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority is united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority–that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The second method will be exemplified in the federal republic of the United States. While all authority in it will be derived from and be dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects; and this may be presumed to depend on the extent of the country and number of people comprehended under the same government. This view on the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into Confederacies, or States, oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rights of every class of citizens, will be diminished; and consequently the stability and independence of the government, the only other security, must be proportionally increased.
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it is obtained, or until liberty is lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.
In the extended republic of the United States–and among the great variety of interests, parties, and sects which it embraces–a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; while there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lies within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a great extent, by a judicious modification of the federal principle.