essay on separation of powers in usa

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The first amendment, historic document, federalist 51 (1788).

James Madison | 1788

On February 8, 1788, James Madison published Federalist 51—titled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” In this famous Federalist Paper essay, Madison explained how the Constitution’s structure checked the powers of the elected branches and protected against possible abuses by the national government. With the separation of powers, the Framers divided the powers of the national government into three separate branches: a legislative branch (called Congress), an executive branch (led by a single President), and a judicial branch (headed by a Supreme Court). By dividing political power between the branches, the Framers sought to prevent any single branch of government from becoming too powerful. At the same time, each branch of government was also given the power to check the other two branches. This is the principle of checks and balances. Madison and his fellow Framers assumed that human nature was imperfect and that all political elites would seek to secure greater political power. As a result, the Framers concluded that the best way to control the national government was to harness the political ambitions of each branch and use them to check the ambitions of the other branches.

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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. . . .

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 defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections 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. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate 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 sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. 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. . . .

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 control each other, at the same time that each will be controlled by itself. . . . 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. . . .

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.

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Separation of Powers

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The term “ Separation of Powers ” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government , this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on. For more information on the Legislative Branch, refer to “Congress.”

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to “Executive Branch.”

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to “Judiciary.”

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate . Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.

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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

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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.

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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.

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