essay separation of powers

Article I, Section 1:

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 Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47 , political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier. 1 Footnote The Federalist No. 47 (James Madison) . Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters. 2 Footnote The Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]” The Constitution of Virginia of 1776 , reprinted in 10 Sources and Documents of United States Constitutions 52 (William F. Swindler ed., 1979) . See also 5 id. at 96 . Similarly, the Massachusetts Constitution of 1780 provided: “In the government of this commonwealth, 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; to the end it may be a government of laws and not of men.” The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention. 3 Footnote The Federalist No. 51 (James Madison) ( “In republican government the legislative authority, necessarily, predominates.” ). See also id. No. 48 . This theme continues to influence the Court’s evaluation of congressional initiatives. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991) . But compare id. at 286 n.3 (White, J., dissenting). Theory as much as experience guided the Framers in the summer of 1787. 4 Footnote The intellectual history of the Confederation period and the Constitutional Convention is detailed in Gordon S. Wood , The Creation of the American Republic, 1776–1787 (1969) .

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed. 5 Footnote See, e.g. , M.J.C. Vile , Constitutionalism and the Separation of Powers (1967) . The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously. 6 Footnote The Federalist No. 47 (James Madison) .

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation, 7 Footnote U.S. Const. art. I, § 7 . but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties. 8 Footnote Id. art. II, § 2, cl. 2 . Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers. 9 Footnote See, e.g. , The Federalist No. 47 (James Madison) ( “[O]ne of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. . . . The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” ). In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue. 10 Footnote Id. Nos. 47–51 (James Madison) .

In the Federalist No. 47 , Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution. 11 Footnote Id. No. 47 (James Madison) . According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 12 Footnote Id. Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty. 13 Footnote Id. Nos. 47–49 . Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 14 Footnote Id. No. 51 . Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 15 Footnote Id.

To achieve the principles articulated by Madison in the Federalist No. 47 , the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance, 16 Footnote U.S. Const. art. I, § 1 . while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach. 17 Footnote Id. art. I, § 7 . The Senate’s role in appointments and treaties provides a check on the President. 18 Footnote Id. art. II, § 2, cl. 2 . The courts are assured independence from the political branches through good-behavior tenure and security of compensations, 19 Footnote Id. art. III, § 1 . and, through judicial review, the courts check the other two branches. 20 Footnote Id. ; Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) . The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches. 21 Footnote U.S. Const. art. I, § 2, cl. 5 ; id. art. I, § 3, cl. 6 . For a more detailed discussion of the separation of powers and checks and balances, see Intro.7.2 Separation of Powers Under the Constitution and Intro.7.1 Overview of Basic Principles Underlying the Constitution.

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The first amendment, module 6: separation of powers and federalism.

When crafting the Constitution, one of the central concerns of the Founding generation was how best to control government power. With the new Constitution, the Framers looked to strike an important balance—creating a new national government that was more powerful than the one that came before it while still protecting the American people’s most cherished liberties. They settled on a national government with defined but limited powers. Instead of placing authority in the hands of a single person (like a king), a small group of people (like an aristocracy), or even the whole people (like a direct democracy), the Framers divided power in two ways. At the national level, the Framers divided power between the three branches of government—the legislative branch, the executive branch and the judicial branch. This process of dividing power between different branches of government is called the separation of powers . From there, the Framers further divided power between the national government and the states under a system known as federalism . In this module, students will explore the key functions of the different parts of government and the role that the Constitution plays in controlling government power.

Download all materials for this module as a PDF

Learning Objectives

• Define the separation of powers and explain how this system works.
• Describe federalism, including how it functions within our constitutional system and how it affects our lives.
• Identify where we see the separation of powers in the Constitution and why the Founding generation valued it as an important feature of their new system of government.
• Identify where federalism is in the Constitution and why the Founding generation valued it as an important feature of their new system of government.

6.1 Activity: Separation of Powers and Federalism: Whose job (or check), is it?

• Student Instructions
• Teacher Notes

Purpose When crafting a new Constitution, the framers were concerned about the threats posed by a powerful new national government. To guard against potential abuses of power, the Founding generation divided power.

In this activity, you will explore the separation of powers and federalism.

Process Complete the Activity Guide: Separation of Powers, Checks and Balances, and Federalism Reflection worksheet. Discuss with your group your understanding of the separation of powers, checks and balances, and federalism.

After your discussion, your teacher will lead you through an activity to determine your understanding of separation of powers and checks and balances, in particular. 

Launch Open the discussion by asking students what they know about separation of powers, checks and balances, and federalism. Then, ask them whether there's anything they wonder about those key principles.

Activity Synthesis After students complete their group discussions, lead them through the Activity Guide: Separation of Powers and Federalism: Whose job (or check), is it? document. You may distribute the document or use it to lead class discussion. 

Now that students have a better understanding of the separation of powers, ask students to identify examples of when a branch has the sole power to work alone and when a branch must work with another branch to take action.

Ask the students these follow-up questions:

• Which jobs are standalone jobs of one of the branches of government?
• Which jobs are overlapping?
• Why did the founders separate power between the branches and included connections and overlap between jobs (checks and balances)?

As part of the discussion, connect the principles of the separation of powers, checks and balances, and federalism to the broader theory of our republic: the need to both check abuses of power and create a government that creates policy that serves the common good (by slowing politics down, blocking bad ideas, curbing abuse, promoting deliberation, valuing principled compromise, etc.).

Students should see not only the value of checking government abuse, but also the constructive parts of our complicated system—how it might promote good policy—and also reflect on whether they think that the founders struck the right balance.

To frame this part of the discussion, ask students to reflect on the following questions: 

• How does this system of separating power act as a tool to ensure better outcomes? 
• How does the entire system work together to slow down politics, limit abuses, promote deliberation and compromise, and force us to work together to achieve common purposes (but only when the ideas are consistent with the Constitution and attract broad support)?

6.1 Activity Guide: Separation of Powers, Checks and Balances, and Federalism Reflection

6.1 activity guide: separation of powers and federalism: whose job (or check), is it, 6.2 activity: key terms.

Purpose By continuing to examine the principles of the separation of powers, checks and balances, and federalism, you will engage with key principles that continue to drive our constitutional system today. 

Process Complete the Activity Guide: Key Terms - Separation of Powers, Checks and Balances, and Federalism worksheet to continue the discussion on separation of powers, checks and balances, and federalism.

Launch Information Review with all students the key principles and the definitions. Give examples of each of the criteria in the worksheet: Definition (pre-written), Characteristic (define), Example (define), and Non-example (define) before asking students to start their group work. Break students into groups and allow them time to explore, discuss, and begin to complete the worksheet.

Activity Synthesis At the end of the activity, remind students that they will be exploring this tool throughout the entire module and will use it as a worksheet for the video lesson. Have students share a few ideas and questions from each group. 

Activity Extension (optional) Now that students have a better understanding of these key principles, ask them to find current examples of separation of powers, checks and balances, or federalism in news articles. 

6.2 Activity Guide: Key Terms - Separation of Powers, Checks and Balances, and Federalism

6.3 video activity: separation of powers.

Purpose Your guide, Professor Jeffrey Rosen, will explore the separation of powers, checks and balances, and federalism.

Process Watch the following video about the separation of powers.

Then, complete the Video Reflection: Separation of Powers worksheet.

Identify any areas that are unclear to you or where you would like further explanation. Be prepared to discuss your answers in a group and to ask your teacher any remaining questions.

Launch Give students time to watch the video and answer the questions. 

Activity Synthesis Have students share their responses in small groups and then discuss as a class.

Activity Extension (optional) Now that students have a better understanding of the separation of powers, you could provide a Word Cloud to support students’ word building skills (virtue, power, checks, reserved).

6.3 Video Reflection: Separation of Powers

6.4 activity: branch exploration.

Purpose Separation of powers refers to the Constitution’s system of distributing political power between three branches of government: a legislative branch (Congress), an executive branch (led by a single president), and a judicial branch (headed by a single Supreme Court). In this activity, you will explore each branch in more detail.

Description Review the summary document for each article: 

• Info Brief: Article I - Congress
• Info Brief: Article II - The Presidency
• Info Brief: Article III - The Judiciary

Complete the Activity Guide: Branch Exploration worksheet to further explore your branch. Students should also be encouraged to look at the Constitution’s text itself when completing the activity sheet.

Final Assignment: Work with your group to build a dossier on your assigned branch and present your findings to the class.  Examples of what goes into the dossier:

• Title:  What is the name of the branch?
• Role:  What is the primary role and/or responsibility of the branch in our constitutional system?
• Structure:  How is the branch structured? Where do we find the branch’s structure set out in the Constitution?
• Power : What part of the Constitution defines the powers of the branch?
• Background:  Write a short paragraph on the historical origins of the branch. What did the Founding generation have in mind?
• Key moments: List the major turning points and/or Supreme Court cases about the branch.
• Other information: Share any other vital information about the branch and how it works.

Launch Review each branch of government with the students briefly before splitting them up into three groups.

• The legislative branch—Congress—makes the laws. (We find this branch in Article I ).
• The executive branch—led by a single president—enforces the laws. (We find this branch in Article II ).
• The judicial branch—headed by a single Supreme Court—interprets the laws. (We find this branch in Article III ).

Activity Synthesis Ask students to complete the Activity Guide: Building a Branch Dossier about their branch and present it to their class. Ask students what branch sounds most interesting to them and why. Ask students to examine whether these answers come from their knowledge about the role as spelled out by the Constitution or how the role plays out every day in our government. 

Activity Extension (optional) Create a spider web map (ecosystem map) of the three branches of government. Students can mark a check on a branch and another color for when branches work together. Refer to the  spider web map example.  

6.4 Info Brief: Article I - Congress

6.4 info brief: article ii - the presidency, 6.4 info brief: article iii - the judiciary, 6.4 activity guide: branch exploration, 6.4 activity guide: building a branch dossier, 6.5 activity: philosophical thinking on separation of powers.

Purpose In this activity, you will use primary sources to identify the philosophical background for separation of powers and checks and balances.

Process Choose one of the assigned readings and answer the following questions. 

• What evidence did the author use for the need for separation of powers?
• What are two main arguments advanced by the author in this piece? 
• What is the role of the governed? 

When complete, be ready to share what you have learned with the class. 

• Primary Source: Montesquieu, The Spirit of the Laws (1748)
• Primary Source: John Adams, Thoughts on Government (1776)
• Primary Source: James Madison, Federalist No. 51 (1788)

Complete the Activity Guide: Philosophical Thinking on Separation of Powers worksheet.

Launch Ask students to read and mark up (one or all of) the primary sources. They should then individually answer the questions. Break students into three groups to review their assigned reading(s) and their answers to the questions.

As a class, discuss the connection between Montesquieu’s ideas of separation of powers, Adams’s views, and Madison’s views. 

Activity Synthesis Have students write an answer to the following questions: 

• How do the ideas of separation of powers and checks and balances prevent one group from gaining too much power? 
• What are the benefits of these key principles? (Answer: Prevent tyranny/abuse of power. Slow down politics and promote deliberation/compromise.) 
• Are there any drawbacks? (Answer: The system is slow. Can’t respond to problems as quickly. Sometimes the government can’t take action. Get them thinking about this now.)

Activity Extension (optional) Now that students have a better understanding of the separation of powers and checks and balances, ask students to write a response to one of the authors either agreeing or disagreeing with their argument. 

6.5 Primary Source: Montesquieu, The Spirit of the Laws (1748)

6.5 primary source: john adams, thoughts on government (1776), 6.5 primary source: james madison, federalist no. 51 (1788), 6.5 activity guide: philosophical thinking on separation of powers, 6.6 activity: federalism, it’s in there.

Purpose Federalism is the word used to describe the Constitution’s system of dividing political power between the national government and the states. When we look for federalism in the Constitution, where can we find it? The Constitution itself doesn’t say the word “federalism” anywhere. But it’s in there. It’s everywhere.

In this activity, you will find examples of federalism in the Constitution. 

Process Read the Info Brief: Federalism and then build out the Activity Guide - Federalism in the Constitution chart to explore the concept of federalism as a key principle in the Constitution. 

Launch Review the concept of federalism. Review the definition and big ideas from activity one and the video.  Give students time to use the chart to identify examples of federalism in the Constitution.

Activity Synthesis Ask students to explain why we have a system of federalism. As a group discussion, ask students again, why did the framers embed these ideas of separation of powers, checks and balances, and federalism into the structure of the Constitution? 

Activity Extension (optional) Now that students have a better understanding of federalism, ask them to find current examples of federalism in news articles. Or explore how women won the vote through federalism and the 19th Amendment by exploring The Awakening interactive map. Students can explore this map to discover how women’s suffrage at the state level paved the way for the 19th Amendment. 

6.6 Info Brief: Federalism

6.6 activity guide: federalism in the constitution, 6.7 test your knowledge.

Congratulations for completing the activities in this module! Now it’s time to apply what you have learned about the basic ideas and concepts covered.

Complete the questions in the following quiz to test your knowledge.

This activity will help students determine their overall understanding of module concepts. It is recommended that questions are completed electronically so immediate feedback is provided, but a downloadable copy of the questions (with answer key) is also available.

6.7 Interactive Knowledge Check: Separation of Powers and Federalism

6.7 printable knowledge check: separation of powers and federalism, previous module, module 5: the bill of rights, next module, module 7: the legislative branch: how congress works.

The Constitution grants Congress—our nation’s legislative branch—the power to make laws. The legislative branch is outlined in Article I of the Constitution. The Constitution divides Congress into two houses—the U.S. House of Representatives and the U.S. Senate. The House of Representatives is composed of representatives proportionate to each state’s population. At the same time, the Senate is organized under the principle of equal state representation—with each state, regardless of its population, receiving two Senators. 

In this module, studen...

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Constitutional Issues - Separation of Powers

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense.

At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics.

In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in Marbury Madison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War ( Dred Scott v. Sanford ), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people.

This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional.

FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired.

Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total.

This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered.

It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost was the alienation of conservative Democrats and the loss of the fight in Congress.

Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place."

One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {A text version of study document is available.}

Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical.

Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require.

This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868.

The Document

Read Transcript

National Archives and Records Administration Records of the Justice Department Record Group 60

Article Citation

Gray, Leslie and Wynell Burroughs. "Constitutional Issues: Seperation of Powers." Social Education 51, 1 (January 1987): 28-30.

Separation of Powers: A System of Checks and Balances

Because, 'All Men Having Power Ought be Mistrusted'

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The governmental concept of the separation of powers was incorporated into the U.S. Constitution to ensure that no single person or branch of the government could ever become too powerful. It is enforced through a series of checks and balances.

Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.

History of the Separation of Powers

Founding Fathers like James Madison knew all too well—from hard experience—the dangers of unchecked power in government. As Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Therefore, Madison and his fellow framers believed in creating a government administered both over humans and by humans: “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The concept of separation of powers, or “trias politics,” dates to 18th century France, when social and political philosopher Montesquieu published his famed "The Spirit of the Laws." Considered one of the greatest works in the history of political theory and jurisprudence, "The Spirit of the Laws" is believed to have inspired both the United States Constitution and France's Declaration of the Rights of the Man and of the Citizen.

The model of government conceived by Montesquieu had divided the political authority of the state into executive, legislative, and judicial powers. He asserted that ensuring that the three powers operate separately and independently was the key to liberty.

In American government, these three branches, along with their powers, are:

• The legislative branch , which enacts the nation’s laws
• The executive branch , which implements and enforces the laws enacted by the legislative branch
• The judicial branch , which interprets the laws in reference to the Constitution and applies its interpretations to legal controversies involving the laws

So well-accepted is the concept of the separation of powers that the constitutions of 40 U.S. states specify that their own governments be divided into similarly empowered legislative, executive, and judicial branches. 

Three Branches, Separate But Equal

In the provision of the three branches of governmental power into the Constitution, the framers built their vision of a stable federal government, assured by a system of separated powers with checks and balances.

As Madison wrote in No. 51 of the Federalist Papers , published in 1788, “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.”

In both theory and practice, the power of each branch of the American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote from both houses .

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

The following are the specific powers of each branch that demonstrate the way they check and balance the others:

Executive Branch Checks and Balances the Legislative Branch

• President has the power to veto laws passed by Congress.
• Can propose new laws to Congress
• Submits the Federal Budget to the House of Representatives
• Appoints federal officials, who carry out and enforce laws

Executive Branch Checks and Balances the Judicial Branch

• Nominates judges to the Supreme Court
• Nominates judges to the federal court system
• President has the power to pardon or grant amnesty to persons convicted of crimes.

Legislative Branch Checks and Balances the Executive Branch

• Congress can override presidential vetoes with a two-thirds vote from both chambers.
• Senate can reject proposed treaties with a two-thirds vote.
• Senate can reject presidential nominations of federal officials or judges.
• Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury).

Legislative Branch Checks and Balances the Judicial Branch

• Congress can create lower courts.
• Senate can reject nominees to the federal courts and Supreme Court.
• Congress can amend the Constitution to overturn decisions of the Supreme Court.
• Congress can impeach judges of the lower federal courts.

Judicial Branch Checks and Balances the Executive Branch

• Supreme Court can use the power of judicial review to rule laws unconstitutional.

Judicial Branch Checks and Balances the Legislative Branch

• Supreme Court can use the power of judicial review to rule presidential actions unconstitutional.
• Supreme Court can use the power of judicial review to rule treaties unconstitutional.

But Are the Branches Truly Equal?

Over the years, the executive branch has—often controversially—attempted to expand its authority over the legislative and judicial branches.

After the Civil War, the executive branch sought to expand the scope of the constitutional powers granted to the president as Commander in Chief of a standing army. Other more recent examples of largely unchecked executive branch powers include:

• The power to issue executive orders
• The power to declare local and national emergencies
• The power to grant and revoke security classifications
• The power grant presidential pardons for federal crimes
• The power to issue presidential bill signing statements
• The power to withhold information from Congress through executive privilege

Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. Though they are technically correct, it is how the Founding Fathers intended the government to operate.

Our system of the separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government. Specifically, it does so in that the legislative (lawmaking) branch, as the most powerful, is also the most restrained.

As James Madison put it in Federalist No. 48 , “The legislative derives superiority…[i]ts constitutional powers [are] more extensive, and less susceptible to precise limits…[it] is not possible to give each [branch] an equal [number of checks on the other branches].”

Today, the constitutions of forty U.S. states specify that the state government is divided into three branches: legislative, executive, and judicial. Illustrating this approach and its inherent separation of powers, the California constitution states, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

While separation of powers is key to the workings of the American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap, being too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

• Basic Structure of the US Government
• Overview of United States Government and Politics
• The Three Branches of US Government
• The U.S. Constitution
• What Is Judicial Review?
• Constitutional Law: Definition and Function
• The Powers of Congress
• Government 101: The United States Federal Government
• Congressional Oversight and the US Government
• About the Legislative Branch of U.S. Government
• Marbury v. Madison
• The Executive Branch of US Government
• What Is a Constitutionally Limited Government?
• Legislative Powers of the President of the United States
• 7 Important Supreme Court Cases
• U.S. Constitution: Article I, Section 8

Separation of Powers

James Madison, Federalist, no. 51, 347--53

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 that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, 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. Without presuming to under-take a full developement of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that 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; and consequently 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 the 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 whatever 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 expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the constitution 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; secondly, 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 annexed to 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 the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for 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 controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls 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 controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul 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 distributions 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 centinel 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 be just, as I persuade myself they are, and they be 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 moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First . In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and 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 between 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 controul each other; at the same time that each will be controuled 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 be 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 first method prevails in all governments possessing an hereditary or self appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and 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 for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member 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 be obtained, or until liberty be 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; and there being thus less danger to a minor from the will of the 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 lie within a practicable 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 very great extent, by a judicious modification and mixture of the federal principle .

Hamilton, Alexander; Madison, James; and Jay, John. The Federalist . Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

Home > Journals > WMLR > Vol. 30 (1988-1989) > Iss. 2 (1989)

William & Mary Law Review

Gerhard Casper

An Essay in Separation of Powers: Some Early Versions and Practices

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8 Introduction to the Separation of Powers

• Published: October 2021
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The chapter introduces the separation of powers, examining its origins, its meaning, and its applicability to the UK constitution. The different types of division required by the principle are identified, with the threefold division between the legislature, executive, and courts, crosscut by divisions between institutional form, skill, and type of power. The two leading contenders for the objective of the principle, liberty, and efficiency, are considered. The chapter raises the question that will animate the following four chapters of the book: is the separation of powers a principle that applies to parliamentary constitutions, or should it be confined to presidential systems?

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Governance Arrangement Symbols: Interaction of Powers in Modern Society

This essay about the intricate interplay of separation of powers in governance, drawing parallels between the symphonic harmony of democratic systems and the orchestration of branches within governmental structures. Through examples ranging from the United States to Germany and Venezuela, it explores how the balance between executive, legislative, and judicial branches is crucial for upholding democracy, safeguarding against tyranny, and ensuring the rule of law. From the grand stages of national politics to the intimate settings of local governance, the essay underscores the significance of this principle in fostering accountability, protecting individual rights, and maintaining the integrity of democratic institutions.

How it works

In the grand orchestration of modern governance, the principle of separation of powers stands as a timeless melody, weaving through the intricate fabric of democratic societies. Like skilled conductors, political thinkers such as Montesquieu have composed this symphony, harmonizing the roles of executive, legislative, and judicial branches to create a balanced arrangement. Let us embark on a journey through the sonorous landscape of separation of powers, exploring its resonance in diverse contexts and uncovering its nuanced melodies.

As we traverse the corridors of history, one cannot overlook the majestic resonance of the United States, where the principles of democracy were etched into the Constitution with meticulous care.

Here, the separation of powers unfolds as a captivating saga, each branch of government playing its distinct role in the symphony of governance. From the corridors of Congress, where laws are crafted with deliberative precision, to the hallowed chambers of the Supreme Court, where justice is dispensed with impartiality, the American experiment embodies the spirit of Montesquieu’s vision.

Yet, the symphony of separation of powers finds resonance beyond the shores of America, echoing across continents and cultures. In the vibrant tapestry of European governance, nations like Germany and France compose their own variations on this timeless theme. In Germany, the Bundestag orchestrates legislative affairs, while the Bundesrat provides a counterpoint of regional representation. Meanwhile, the judiciary, ensconced within the Constitutional Court, safeguards the melody of constitutional rights, ensuring that no discordant note disrupts the harmony of the state.

Moreover, the symphony of separation of powers reverberates even within the microcosms of local governance, where municipalities and counties conduct their own melodic arrangements. In the bustling metropolis of New York City, for instance, the mayor conducts the executive affairs of the city, while the City Council orchestrates legislative initiatives. Meanwhile, the judiciary, embodied by the courts of the five boroughs, adjudicates disputes with the finesse of seasoned virtuosos, upholding the rule of law in the urban cacophony.

However, as with any symphony, the melody of separation of powers is not without its dissonant chords. In countries like Venezuela, where the harmonious balance of governance has been disrupted by authoritarian overtures, the judiciary struggles to maintain its independence amidst the tumult. Here, the executive, wielding unchecked power, conducts a symphony of oppression, drowning out the voices of dissent and undermining the very foundations of democracy.

Yet, amidst the cacophony of tyranny, there are symphonies of resilience and hope. In nations like South Africa, where the echoes of apartheid still linger, the judiciary serves as a guardian of democracy, conducting a symphony of justice and equality. Through landmark rulings and judicious interventions, the Constitutional Court has conducted a transformative melody, empowering marginalized communities and upholding the sacred tenets of human rights.

In conclusion, the symphony of separation of powers remains a timeless masterpiece, resonating across the corridors of history and the tapestries of culture. From the grand halls of Congress to the humble courthouses of local municipalities, the interplay of executive, legislative, and judicial branches creates a harmonious melody of governance. Yet, amidst the crescendos of democracy, there are discordant notes of authoritarianism, reminding us of the fragility of freedom. As stewards of democracy, it is our solemn duty to conduct this symphony with care and reverence, ensuring that the melody of separation of powers endures for generations to come.

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Governance Arrangement Symbols: Interaction of Powers in Modern Society. (2024, May 12). Retrieved from https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/

"Governance Arrangement Symbols: Interaction of Powers in Modern Society." PapersOwl.com , 12 May 2024, https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/

PapersOwl.com. (2024). Governance Arrangement Symbols: Interaction of Powers in Modern Society . [Online]. Available at: https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/ [Accessed: 13 May. 2024]

"Governance Arrangement Symbols: Interaction of Powers in Modern Society." PapersOwl.com, May 12, 2024. Accessed May 13, 2024. https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/

"Governance Arrangement Symbols: Interaction of Powers in Modern Society," PapersOwl.com , 12-May-2024. [Online]. Available: https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/. [Accessed: 13-May-2024]

PapersOwl.com. (2024). Governance Arrangement Symbols: Interaction of Powers in Modern Society . [Online]. Available at: https://papersowl.com/examples/governance-arrangement-symbols-interaction-of-powers-in-modern-society/ [Accessed: 13-May-2024]

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