The Separation Of Powers—Preventing Tyranny
by Stephen Zierak
This lesson is taught by Dr. Kevin Portteus, Assistant Professor of Politics at Hillsdale College. He is also the faculty advisor for the Washington-Hillsdale Internship Program. Dr. Portteus teaches courses in American political thought and American political institutions. He received his BA from Ashland College, and his MA and PhD in Politics from the University of Dallas. This lecture was posted on the internet March 12, and those interested may register at Constitution.Hillsdale.edu. There is no fee. There will be six more lessons, available weekly on Mondays.
Our founders had a clear-eyed view of unchanging human nature. On the one hand, there are many positive aspects to our characters. We can be rational, productive, benevolent, loyal….All the important virtues. More than any other form of government, a republic presupposes a higher degree of the good in us. On the other hand, people are indeed often moved by ambition, greed, and sometimes even irrationality. Human nature is a mix of the good and the bad, and our founders understood the opportunities and challenges of governance presented by who we are.
If we are incapable of the good, if we are incapable of governing our selves, then we would be incapable of political self government. In that case, the only way to prevent anarchy would be to establish a strong, authoritarian state. Our founders believed we are capable of good, and that the main problem in designing a constitutional government is to find ways to support the good in us, while checking the bad.
Our founders did not believe that government is a “necessary evil” as so many conservatives and libertarians believe today. Instead, they saw a just, properly constructed government as a good. In the absence of government, people will violate each other’s natural rights. Government’s positive role is to protect those rights from violation, to prevent tyranny—whether as tyranny of the one or of the many.
The founders recognized that man had created many bad governments for many bad purposes. They understood that there was no class of supermen with a special claim to fitness to rule over the rest of us. Plato’s “philosopher kings” do not exist in the reality of human life. Government must be us, with all our failings, and we must discover ways of governing one another without oppressing one another.
In the various state constitutions of the 1770’s and 1780’s, the people had reacted to their concerns about executive usurpation of legislative authority during colonial times, and reinforced the power of the legislative branch. Placing power in the hands of popular representatives was considered a surer way of protecting rights. These states recognized the need for a separation of powers, but now it was the legislature encroaching on executive and judicial powers. For example, a legislature might take upon itself administrative decisions as routine as what tent the army should buy. The Pennsylvania legislature actually adjudicated divorce proceedings in some cases. While branch powers were spelled out in those constitutions, the legislature didn’t hesitate to appropriate the powers of the other branches. As James Madison quoted Jefferson in Federalist 48, “The judiciary and the 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…”
This unchecked power could be and was abused. Consider the Rhode Island legislature as an example. Debtors are always more numerous than creditors. In Rhode Island, the people elected a majority that was expected to help the debtors. The state was flooded with paper currency, and a law was passed to require that creditors accept the currency at face value for loans made in gold and silver. A creditor’s only remedy was to a three judge panel, instructed by the legislature to consider only whether or not he had accepted the paper currency as required by law. When one panel ruled for the creditor, they were kicked out of office in the next election. There was no appeal. The legislature, and the electorate, had created unjust law with no real recourse.
Some thought that the solution to this problem would be to hold regular constitutional conventions that could curb legislative abuses. However, Madison pointed out that the same type of people would be elected to the conventions as to the legislatures. The bad ideas would go from statutes to constitutional provisions, even more difficult to fix. Madison believed that external controls were impractical, and that the only solution lay in internal checks. Separation of powers needed to be more than words on parchment. The partitions of authority had to be made real and effective. Constitutions need to be designed so various actors serve as checks on one another.
The first three articles of our Constitution enumerate the powers of the legislative, executive, and judicial branches. This separation of power is the central structural feature of the document. In previous state constitutions, these three powers were strictly separated. There were no overlaps. Madison asked the question in Federalist 48, “Will it be sufficient to mark, with precision, the boundaries of these documents in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?” Having witnessed the failure of this approach in state constitutions to protect the independence of the executive and judiciary in the exercise of their powers, Madison argued for some protective overlap. Examples include the veto power, judicial review, and impeachment. Congress has the legislative power, but the President can veto a bill, requiring a two thirds supermajority to override. Judicial review can check the legislature and executive. The legislature has the power of impeachment, but a conviction requires a two thirds supermajority in the Senate. No longer could a legislature use compensation of the executive and judiciary as a carrot and stick. The President’s salary could neither be increased nor decreased during the term of his office, and judicial salaries could not be decreased. These are all constitutional tools to guard against encroachment by one branch on the powers of the other branches.
Madison also noted the special qualifications necessary for members of the judicial branch. Judges work outside the public eye, and campaigning for office would be unseemly. So our Constitution involves the President (make the appointment) and the Senate (consent to the appointment) in selecting the judges. But once in office, judicial independence is guaranteed by lifetime appointment, subject only to the impeachment power. We all remember Justice Souter. Far from being a “closet conservative”, this Bush I appointee turned out to be one of the more liberal justices on the Supreme Court. The reverse situation occurred with President Kennedy’s appointment of Justice White. But their independence, as with the independence of all federal judges, was guaranteed by the constitutional arrangement.
Along with constitutional mechanisms, the founders also created checks that harnessed human nature to protect against encroachment of power. In perhaps the most famous passage from the Federalist Papers, Madison wrote in #51, “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 on 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….A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Power, honor, and glory are desired by ambitious men. Use that very ambition to check usurpation of power. The Constitution creates offices that people want to hold. The source of power resides in the office so created. A person must protect the prerogatives of his office in order to retain its power. This serves as a check against those who might want to encroach on the powers of an office. As Madison said, ambition counteracts ambition. It is more difficult to seize illegitimate power from another when the offices are separated as in the Madison arrangement.
But not impossible. Madison never guaranteed a perfect government. The founders spoke of “a more perfect union”, with a constitution superior in its structure to those enacted by the states with their paper separations and all too frequent acts of legislative tyranny. All the pushing and pulling inherent in the operation of our constitutional system is one of its primary advantages. It is difficult for any one branch to gain all the power, as did the legislatures in the state constitutions of the time. The hope was that the branches would stay in the same relative positions to each other. The rights of individuals were at stake in making this work. Constitutional tools and personal motives would secure the system.
The founders were far more realistic about unchanging human nature than those who came later. The progressives viewed human nature as malleable with a little education, and some tinkering with the laws and economic system. Theodore Roosevelt expressed frustration with those who were concerned about a tyranny of the majority. In his view, the people were not the problem. The government should act on behalf of the people against “robber barons”, or as cousin Franklin would have put it, against “economic royalists.” Pure majoritarian rule assumes that human nature can be improved to the point where those who govern are not a threat to rights, and where people won’t elect those who will willingly violate rights.
The root causes of twentieth century totalitarian systems were attempts to create a “new man”, the perfect man in the perfect society, free of all private concerns and dedicated to serving the public. To create this utopia, it would be necessary to purge the unregenerate elements of society, whether so defined by race (Nazis) or by class (Communists). This meant of course work camps and liquidations (murders). After all, it was always necessary to break some eggs to make an omelet. Right? Human rights meant nothing in comparison to the perfect society. You should just hope you aren’t one of the eggs.
Many of our problems today derive from the progressives’ rejection of separation of powers. With the right training, with the correct political and cultural environment, we could build the disinterested, public spirited bureaucrat who would solve all our problems. We would no longer have to worry about anything. Abandonment of our human rights would be a small price to pay for secular Jubilee.
Even Marx was more realistic about human nature. He realized that a bureaucracy becomes an interest onto itself. It will always seek to expand itself—more men, more resources—whether or not such expansion might be in the public interest.
Our founders were wiser men. Through the separation of powers, they built a framework of government around a clear understanding of human nature. Instead of a fruitless attempt at making man better than he was likely to be, the founders constructed a better government that could serve men as they are.
The next lecture in this series is Separation Of Powers: Ensuring Good Government, taught by Dr. Will Morrisey. It will be available on the internet on Monday, March 19.