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by Stephen Zierak

Lecture Five:  Separation Of Powers—Ensuring Good Government

This lesson is taught by Dr. Will Morrisey, Associate Professor of Politics at Hillsdale College.  Since 2000, he has instructed Hillsdale students in American politics, political philosophy, and comparative government.  Dr. Morrisey has published eight books on statesmanship and political philosophy, and he writes regularly for both major newspapers and professional journals.  He has served since 1979 as editor of “Interpretation:  A Journal Of Political Philosophy”.  Dr. Morrisey earned his BA from Kenyon College and his PhD in political science from New School University.  This lecture was posted on the internet March 19, and those interested may register at Constitution.Hillsdale.edu.  There is no fee.  There will be five more lessons, available weekly on Mondays.

 

When a person, King George III, collaborated with other persons, the British Parliament, to deny the natural rights of Americans, the resulting oppressions described in our Declaration were neither thoughtless nor random.  The violators were organized into a regime that operated in a systematic way to accomplish its short-sighted objectives.  A regime may be good or evil, depending on its purposes and conduct.  Our founders held that the proper purpose of government is justice, securing the natural rights of its citizens.  They described those rights in writing (our Declaration) and later established a new regime in writing (our Constitution) to secure them.  The Constitution answered the call of the Declaration.

 

There are three dimensions to a regime.  First, there are ruling institutions.  What is the form of the government?  Second, there are ruling persons.  What are the characteristics of the rulers, and how are they selected?  Finally, what is the way of life chosen by and allowed to those persons within the regime?  Our Constitution defines the first two dimensions, and is meant to operate in accordance with an American ethos.  A good regime must operate effectively to everyone’s benefit.  A regime often determines the life prospects for people, what they are allowed to do, what they are likely to believe.  America is a nation of immigrants who often left the oppressions of bad regimes for the opportunities of a good regime.

 

Last week, we learned that the Constitution’s separation of powers was designed to protect the rights of citizens from majoritarian tyranny.  The Articles of Confederation had created a single legislative body that served also as an executive and lacked an independent judicial function.  Had the Articles provided greater central powers, this arrangement would have been dangerous to our liberties.  The operation of unchecked power in the legislatures chartered by state constitutions had already demonstrated attacks on individual rights by hastily assembled majorities subject to popular passions of the moment.

 

Separation of powers was also meant to foster good, effective government that took due notice of government’s purpose, securing the natural rights of the people.  Our system of compound republicanism produces a government more deliberate, more moderate, and more just.  Federalism divides power among federal, state, and local governments.  This vertical structure provides opportunities for citizens to learn governance through participation in it at local levels.  Practical experience of government grounds citizens in reality, rather than utopianism, and encourages citizens to push back against overbearing central government should there be unwarranted encroachment on local self rule.  Separation of powers into legislative, executive, and judicial branches distributes power horizontally to further the founders’ objective of a highly  deliberate process of governance.

 

The Constitution delegates real powers to the federal government.  Along with various responsibilities, such as national defense, treaty making, and regulation of interstate commerce, the national government now had the most important power of raising revenue without going to the states for cooperation.  No longer would the central authority  be weak and dependent as was the case with the Articles.  The founders turned to Montesquieu and Locke as they considered how to protect rights from a potential leviathan.  Montesquieu had warned that liberty was not possible where legislative and executive powers were united in one body.  Locke had observed that an unrestrained quest for absolute power by any single person or body of men must violate consent and place the rulers in a state of war with the ruled they intended to enslave.

 

For all the reasons discussed last week, the founders considered the legislative branch to be both the most powerful and therefore the most dangerous branch.  The founders had already rejected any kind of direct democracy and had embraced representative government.  Decisions arising from the passions and impulsiveness of an Athenian public assembly would be replaced by decisions arising from a system that put time between the vagaries of today’s popular demands and the mediating, more prudent, less excitable actions of representatives tomorrow.  Moreover, the legislative power would be bicameral, where the passage of any law would require action by two co-equal chambers.

 

The House of Representatives was designed to represent the people more directly than was the Senate.  Elections are frequent with all representatives up for reelection every two years.  Qualifications for office are few:  at least age 25; at least 7 years a citizen; resident of the state; holder of no other federal office.  All those so qualified could offer themselves as candidates, leaving the people to decide their merits regardless of wealth, social status, or religious beliefs.  An elected representative would be more likely to be faithful to his constituents because he had to stand for reelection every two years and so could easily be replaced.  The Senate was expected to provide a check on the House, to be a cooling and moderating influence. Originally, a senator would be selected by his state legislature, tying the body to the states within the federation.  Term of office is six years, and this longer period provides for more experienced legislators with more independence of action as they consider long term consequences of legislative proposals.

 

There are those who charge that the House has become an oligarchy of long-serving millionaires, no longer in sympathy with the aspirations of the people represented.  If this be the case, we have only ourselves to blame.  James Madison addresses this question in Federalist 57:  “If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society?  I answer:  the genius of the whole system; the nature of just and constitutional laws; and, above all, the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.  If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”  The founders did not promise a perfect government, merely a more perfect union.  Future generations had a responsibility to maintain liberty.  We have suffered from the want of Madison’s “vigilant and manly spirit.”  We all have work to do.

 

Each of the chambers is meant to supply what the other lacks.  The House communicates the popular spirit, while the Senate provides a steadying hand in the making of law.  The founders believed that an ever-changing system of laws was no system at all.  Rule of law requires stability and clarity in the law so the people can understand the rules under which they live.  Madison has a lot to say about this in Federalist 62:  “The internal effects of a mutable policy are still more calamitous.  It poisons the blessings of liberty itself.  It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood….Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed.  Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people….What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?”  The founders wanted the process of legal change to be slowed down, and the bicameral legislature was an attempt to ensure this.  Madison would not have been a fan of the Affordable Care Act or Dodd Frank.

 

The founders sought energy in the executive branch.  How could the people be protected from foreign and domestic threats, how could there be steady administration of the laws, should the executive branch be weak and listless?  The founders had seen enough to understand that ill executed government is, in practice, bad government.  Separation of powers requires a strong executive, independent of the legislature.

 

The Constitution protects the prerogatives of the executive branch in four ways.  First, there is but one President, and he directs all the subordinate staff in the executive branch.  This unity in the executive avoids bickering, back stabbing, and unclear accountability that would undermine executive branch energy and strength.  Second, the President is elected for a four year renewable term.  This duration in office provides the inhabitant a stake in the office, making it far less likely that he will succumb to attempts at legislative encroachment.  It also provides time for the best design of orderly ways to enforce the various laws.  Third, the Congress is barred from changing the compensation of the office during a President’s term in office.  This provides a better guarantee of independence of action for a President.  Finally, the President is given the power of the veto.  Unless overridden by two thirds of both houses of the legislature, he can stop what he considers to be a bad law.  This provides a second line of defense against majoritarian tyranny, and ensures at the least some additional time for cool reflection.  The founders realized that the veto could stop good laws as well, but believed it is more important to protect the people from bad laws.

 

The legislative branch converts societal aims into law and funds the operation of the government.  It expresses the will of society and possesses the power of the purse.  The executive branch supplies the means of enforcement.  The founders never expected the President to lead public opinion, but rather to follow legitimate popular desires embedded in the laws through excellent implementation.  The judicial branch has the power of judgment as to what the law actually says.  Its independence is guaranteed by lifetime appointment (subject to good behavior) and prohibitions against compensation reductions.

 

The founders believed that the judicial branch would be the weakest branch.  In Federalist 78, Alexander Hamilton explains why:  “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.  It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  Moreover, the legislature can impeach judges who clearly stray from defending the peoples’ rights under the Constitution and the laws.  If the judiciary overreaches, it is the fault of the other branches for allowing it, not of the Constitution which has provided the tools for remedy.

 

Article III of the Constitution vests the judicial power in one Supreme Court, and in such inferior courts as Congress may create.  Section 2 states, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made…”  This certainly suggests a power of judicial review for the constitutionality of an enacted law.  In Marbury v. Madison, Chief Justice Marshall wrote:  “The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts….If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable….It is emphatically the province and duty of the judicial department to say what the law is….If two laws conflict with each other, the courts must decide on the operation of each….If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

 

Separation of powers does not mean that we have three branches of absolutely independent authority.  In such a case, each branch could go off on its own, and there would be no way of resolving conflict.  Rather, the Constitution creates interdependencies among the branches through certain defined joint responsibilities (such as Senate approval of Presidential appointments) and authority protection devices such as the veto, impeachment, and judicial lifetime appointments.  There is orderly coordination of activity, and the three branches have to cooperate to get things done.  Separation of powers does not yield three governments, but rather three branches that operate with the consent of each other.

 

The Constitution is designed to promote orderly and well-considered legal change in accord with rule of law and protection of natural rights, and to resist excessive responses to ephemeral public passions.  The founders could have coined the common expression,  “slow and steady wins the race.”  By both dividing and correlating government powers, the Constitution is meant to reinforce citizen understanding of the need for responsible and effective government in support of every citizen’s rights.

 

The next lecture in this series is Religion, Morality, And Property, taught by Dr. David Bobb.  It will be available on the internet on Monday, March 26.