Illustration of Separation of Powers: Civics Education Matters
American Separation of Powers Illustrated: What We Need To Know
For almost 250 years, the United States has served as a model illustration of “separation of powers” to the rest of the world. Indeed, the United States is viewed as the first country to adopt separation of powers in its government structure. It’s an important concept. But what does separation of powers actually mean and why is it more important now than ever before?
American schoolchildren view illustrations of separation of powers such as the one below:
Separation of powers illustration- checks and balances on power.
This illustration of separation of powers shows the dynamic relationship between the three branches of government in the United States. The scales of democracy will not balance without the prescribed movement in all directions between the yellow, green, and blue arrows on the illustration.
Further, the system of checks and balances represents an equilateral triangle. All branches are co-equal and none takes precedence. Executive could switch places with Judicial or Legislature in the illustration of separation of powers. The result would be the same.
But should any branch take over the powers given to another branch or cease to perform its required function the structure will collapse. American democracy and freedom created by the Constitution will not exist.
What Does Separation of Powers Mean?
The French philosopher Montesquieu coined the phrase, “separation of powers” in his influential essay, “The Spirit of Laws”. Montesquieu wrote:
“When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty.” The Spirit of the Laws, 1748.
Written in 1787, the US Constitution adopted Montesquieu’s insistence on the separation of the governmental powers of making, executing, and interpreting the country’s laws.
Britannica defines separation of powers as:
“division of the legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.”
The structure institutionalizing this separation of governmental powers in the United States diverged from other government structures existing at the time. Previously, many countries, such as England, were ruled by unelected monarchs, or emperors. The president would have “term limits” of four years, in contrast to monarchs who ruled for life unless toppled from power.
Monarchs controlled many government functions, with vast power. In fact, monarchs claimed to derive their right to rule directly from God. In their view, they were not subject to any earthly authority, asserting what was known as “the divine right of kings”.
"The two Georges”- different leadership terms and powers.
Founders’ View of Separation of Powers
Having overthrown a monarchy and having set up an elective government based on the ideas of Montesquieu and other Enlightenment thinkers, the founders felt it essential that no branch of government have more power than the others. They created a new type of government with a new type of government head, the president, without the absolute power of King George.
In Federalist Paper No. 47, The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, James Madison wrote:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny."
In Document 10, Separation of Powers, Notes on the State of Virginia, Thomas Jefferson agreed with his Virginia neighbor:
“An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced.”
These comments from influential Constitutional Convention delegates and future presidents demonstrate that separation of powers is critical to American democracy. They also show the intended limits on and interaction of the presidency, legislature, and judiciary.
What Specific Powers Does Each Branch of Government Have?
In addition to creating a system with a separation of powers, the Constitution defined the roles and powers each branch of government would have. Taken together, these symbiotic powers and restrictions create a system of “checks and balances”.
The Constitution grants specific powers to the three branches of government. These powers include:
President: Commander in Chief; may require the opinion of Cabinet Department heads; reprieves and pardons, veto power, make treaties with advice and consent of the Senate (need 2/3); nominate and appoint Ambassadors, and federal judges with advice and consent of the Senate; fill all vacancies that may happen during the recess of the Senate (expires at end of next Congressional session).
Congress: Provide advice and consent to the president’s nominations, make laws, declare war, coin money, borrow money, lay and collect taxes, provide for the common defense, raise an army and navy, regulate commerce, establish rules of immigration, naturalization, and bankruptcy, establish post office and roads, grant intellectual property rights, and establish the federal courts and their jurisdictions; override veto with 2/3 in both Senate and House. The Senate has sole power to try all impeachments.
Judiciary: Judicial power over controversies arising under the Constitution, laws, and treaties of the United States, jurisdiction over controversies which involve the United States or where a state is a party, or between citizens of different states; interpretation of constitutionality of laws. Supreme Court Chief Justice presides over all impeachment trials.
How Checks and Balances Work
In order for the separation of powers to be effective, each branch must have the ability to check the other. Some examples of how this works:
-President vetoes a law (checks legislature)
-President issues a pardon and appoints judges (checks judiciary)
-Congress overrides a veto (checks president)
-Congress can affirm or reject president’s nominees (assists and checks president)
-Congress holds impeachment trial of a president; Supreme Court Justice Presides (checks president)
-Supreme Court holds a law passed by Congress unconstitutional (checks Congress)
-Supreme Court declares act of a president unconstitutional (checks president)
It’s like a perfect equation: you must do to one side what you do to the other, and you get a satisfying, complete answer. If you don’t, the answer is wrong.
Rule of Law and Norms Underpin Separation of Powers
American democracy relies on two additional factors beyond the above illustrations of the separation of powers:
the rule of law
norms or standards
Montesquieu’s theory of separation of powers rests on the belief that nobody will be above the law, including the president (“the rule of law”) and that the actions of the state, including all three branches of government, will conform to publicly-known standards, or norms.
To recap, the formula for American democracy is:
Separation of Powers +
Checks and Balances +
The Rule of Law +
Standards + Norms
= DEMOCRACY
All of these elements or ingredients are essential. If we lose independence of the three branches, checks and balances, or adherence to publicly-known standards, norms, values, or the rule of law, our society will not function well or as intended. We will have a different type of government than we’ve had for the past two and a half centuries.
Food For Thought
Think of a baker creating a cake for the country. There are many ways to make a delicious cake, or a successful American democratic republic. Great recipes can include Democratic or Republican presidents or majorities, Independents, and many different ingredients.
Sometimes the public will prefer or need chocolate, sometimes vanilla, a little fruit here and there, or lots of sprinkles. All can work.
But throw in too much salt and the cake tastes bad. Add ingredients that don’t mix together and bind with each other, of forget the flour, now that’s a problem, perhaps not dissimilar to the polarization in our country at the moment.
If we make too many batters, or have too many years where we don’t cherish, curate, and calibrate these essential ingredients, we won’t end up with a cake. Whatever we consume won’t taste good to most of us, unless we happen to get the rare great piece.
Not enough yeast (separation of powers and checks and balances), and the cake won’t rise. Don’t use heat (rule of law), and the cake won’t bake. Don’t use a pan (standards, norms), and our creation will lose shape and not even resemble a cake.
If we eliminate separation of powers and any of the rest of our special American ingredients, we will lose our unique deliciousness. We may then find ourselves in a food fight where most Americans are the losers.
