Human Rights & Democracy Movement

SEPARATION OF POWERS: The American Experience
(By Viliami Fukofuka)

INTRODUCTION

The American Constitution was the handiwork of 55 delegates from twelve of the thirteen states that made up the United States of America in the late eighteenth century. The delegates met in Philadelphia, Pennsylvania from 25 May to deliberate on their various proposals for a Constitution for the new nation. Work on the Constitution was completed on 17th September 1787 and it was then submitted to the states for ratification which process was completed on 21 June 1788. It was declared effective as from 4 March 1789.

The drafting of the Constitution was carried out in the context of a young nation which had just declared its independence from Great Briain on 4 July 1776. It was, at the time, struggling with the need to create a community since the Articles of Confederation of 1777 had created a weak national government while the state governments had substantial powers.

In many states the executive and the judiciary were subordinate to the legislature. This arose from the great distrust of the executive by the Americans developed through pre-revolutionary experience with “King in Parliament”. Therefore, all monarchial and aristocratic features had to be eliminated so that, except for the protection afforded individual freedom by bills of rights, the states placed few obstacles in the way of legislative dominance. The state and central governments were greatly handicapped by poorly constructed and imperfectly balanced constitutional systems. In addition the currency situation was chaotic. With no constitutional safeguard to protect them, the property class began to distrust the revolutionary emphasis on liberty. Accordingly by 1786 the future outlook of the United States of America was very bleak indeed.

The Philadelphia Convention was therefore aimed at framing a Constitution that would firstly give the central government powers to deal with foreign nations, levy taxes, regulate commerce and provide for an effective military system; and secondly to place constitutional restrictions against the state legislative majorities which were prone to violating the rights of property and contracts. The delegates to the Convention were predominantly lawyers, businessmen, planters and investors. Because of the inadequacies of the Articies of Confederation of 1777 and the Constitutions of new states, profound distrust in human nature and democracy had developed in the human mind. However, there was warning from the likes of Benjamin Franklin of Pennsylvania not to “incautiously run to the opposite extreme”.

The delegates recognised that the Articles of Confederation needed to be revised and the powers of central government enlarged and reinforced. At the same time the Convention had to work on a system that would accommodate both individual and state interests. In that regard the delegates eventually adopted the Connecticut compromise advocated by Dr. Samual Johnson which pointed out that “in some respects the states are to be considered in their political capacity, and in others as districts of individual citizens; the two ideas embraced on different sides, instead of being opposed to each other ought to be combined; that in the one branch the people ought to be represented: in the other states”.

The final draft of the Constitution was submitted to the Congress which in turn referred it to the state conventions specifically called to consider its ratification. The Constitution recognised the right of people to change their government and establish a new one more in keeping with their safety and happiness. This, according to James Wilson of Pennsylvania, was “the leading principle in politics and that which pervades the American Constitution”.

According to James L. Sundquist of the Brookings Institute, in his book “Constitution Reform and Effective Government”, the Constitution achieved two purposes. Firstly, it created a structure of government for the new republic, it defined the unique American tripartite system of independent and yet interdependent branches – executive, legislative and judicial – prescribed how those holding office should be chosen, and sought to draw a boundary between the powers of the national government and those of the states. Secondly, it provided a limited body of fundamental substantive law, relating to subjects of controversy at the time such as slavery, civil liberties, the public debt, taxation and regulation of commerce and titles of nobility.

The basic flaw of the original Constitution was the absence of a bill or rights. That was rectified when the congress proposed the first ten amendments [Bill of Rights] which the states ratified in 1791.

SEPARATION OF POWERS

The one single principle from which the framers of the Constitution never wavered during the course of their deliberations in the Philadelphia Convention was the central doctrine that the powers of government must be separated into three branches – legislative, executive and judicial. James Madison of Virginia, who contributed most to the substance of the Constitution, called the doctrine of separation of powers “the sacred maxim of a free government” and no one disputed it in the furious debates over ratification. No one wanted a single group, legislative or executive, to be supreme in the new republic as was the case with the House of Commons in Britain at the time.

The founding fathers were fearful of despotism as was common in the rule of Kings in Europe. The founders not only wanted a strong government but were also keen to set up safeguards to protect the people form abuse of power by the invigorated organs of state. To that end power would have to be dispersed among branches of government capable of checking and controlling one another.

“Our chief danger arises from the democratic parts of our Constitution.” Governor Edmund Randolph of Virginia said, “It is a principle which I hold incontrovertible, that the powers of government exercised by the people swallows up the other branches. None of the Constitutions have provided sufficient checks against democracy. In framing a government which is to be administered by 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.”

In the Constitution Congress is expressly forbidden to do certain things. It may not pass retrospective laws or a bill of attaindes (extinction of civil rights in consequence of a capital crime). It may not tax exports from any state, and it may not suspend the writ of habeas corpus. The Bill of Rights contains a long list of things the national government is powerless to do. The state governments are similarly circumscribed in Article 1 Section 10. They may not enact retrospective laws, coin money, emit bills of credit, or enter into any treaty or alliance with a foreign state. The framers sought in other ways to control the government. Separation of powers and federalism, the “due process” clauses of the Constitution, and the doctrine of judicial review manifest the framers; determination to oblige government to restrain itself. None of the limiting principles is spelt out, they are eigher implicit in the organisation and structure of the Constitution, or as with judicial review, deducible from its general provisions. The first of these limiting principles is the separation of powers. The Constitution divides and limits authority even as it confers it. Congress has legislative powers; it may not therefore (except as a result of a specific grant or by implication), exercise executive or judicial power. The same restrictions apply to the other major branches of the national government.

In the exercise of the respective functions neither Congress, President, nor Judiciary may, under the separation of powers, invade fields allocated to the other branches of government. Instead of requiring that the branches be kept absolutely separate and distinct, the Constitution blends and mingles their functions. Congress is granted legislative powers, but the granting is not exclusive. Lawmaking is shared by the President in his exercise of veto. The appointing authority is vested in the President but the Senate must give its advice and consent to certain appointments, such as that of the justices of the Supreme Court.

Federalism, the second limiting principle, means a constitutional system in which two authorities, each having a complete governmental system, exist in the same territory and on the same people. In the American manifestation, federalism is a complicated arrangement whereby the national government exercises certain enumerated powers, all others being reserved to the states respectively, or to the people.

Each government is supreme in its own sphere: neither is supreme in the sphere of the other. Thus federalism, like separation of powers and checks and balances, is a means of compelling government to control itself. Not only is each government, national and state, bound to restrain itself from encroaching on the domain of the other, but each must heed the injunction that “no person…(may) be deprived of life, liberty and property, without due process of law,” as stated in the Fifth Amendment. The Fifth Amendment limits the national authority in that respect; the Fourteenth Amendment controls the states.

Applying standards drawn from the vague “due process” formula, the courts constitute the ultimate safeguard of individual privilege and governmental prerogative alike. As to all these relations – that of the various organs of the national government to each other, of the states and national governments, and both these two authorities to individual rights – the judiciary functions, in the words of Woodrow Wilson, is the: “balance wheel of the entire system.”

The founding fathers, being distrustful of popular power and alert to the necessity of safeguarding individual rights against “interested and overbearing majorities” established free government. Those entrusted with the management of public affairs must, of course, be governed by “deliberate sense of community” but unqualified complaisance to every sudden breeze of passion, or every transient impulse was not considered either necessary or desirable. Unrestrained majority rule and a political system absolutely dependent on society were rejected as not providing adequate security for individual liberties, rights and privileges. Government must be dependent on the peole, but the government ought to possess the independence necessary to safeguard the “liberties of a great community.”

According to author James L. Sundquist “the overwhelming majority (of the delegates to the Constitutional Convention in Philadelphia) wanted no single group, legislative or executive to be supreme in the new republic.”

The concerns of individual delegates about the possibility of despotism and the “turbulence and follies of democracy” merged naturally into a general theory of “checks and balances”, by which all three branches would be protected against encroachments by one another. The system to be evolved would be one in which “ambition must be made to counteract amibition” as Maddison wrote in the Federalist.

The Congress was to be checked in two areas: it would be weakened by diving its powers between two houses: the executive and judiciary would be provided means of self-protection. For the judiciary that meant the power to declare unconstitutional any law that it found invaded the judicial powers. For the executive, the most important safeguards would be the independent election of the Presedent and his right to veto legislation that encroached on his powers.

Madison commented that dividing the legislature “doubles the security of the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would be sufficient, and to decrease the likelihood of concurrence, the two houses should be rendered 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.

William R. Davie of North Carolina in the states rectification convention reported that approval of a divided house had depended on the view that it was necessary that a longer-tenured group of men (Senate) who were “more experienced, more temperate, and more competent to decide-rightly” would check a popular branch “which might be influenced by local views, or the violence of party”. The Convention of 1787 decided that a longer period of tenure for the Senate would guarantee stability so a term of six years was agreed upon, to be staggered. While members of the House of Representatives were to be elected every two years. Originally it was decided to leave it to the state legislatures to select the Senators. However, the Seventeenth Amendment of 1913 provided for the direct election of United States Senators. In any case, the states have the power through the Senate to defend themselves against encroachment by the federal government, just as the Presidential veto enabled the Executive branch to defend itself against the Legislature.

As an element of compromise, the House was given exclusive power to originate revenue bills.
The Constitutional Convention decided that an electoral college be constituted for the election of the President, thus taking the election of the President out of the congress. This was a novel idea that was decisively approved. This scheme ensured that the Chief Executive does not become subservient to the will of the legislators.

The President was to be elected for four years and was eligible for re-election. The electoral college would be made up of electors from all states. The number of electors from each state would make up of the number of senators and representatives combined. In the case of a tie, the House of Representatives will vote but each state having only one vote each and there has to be a majority of all votes.

In a government of separate powers, the legislative branch could not hold an absolute power to make laws. The President was gien the power of veto therefore.

However, Congress can override the veto by the approval of two-thirds of each House.

The principal checks of the President, in addition to the power of the purse, were to lie in the Senate’s control of appointments and of treaties, the legislatures retention of the power to declare war, and the power of the legislatures, in extremity, to remove the Chief Executive by impeachment. In addition legislators would be protected from executive influence by denying the President the right to offer them positions in the Executive branch as long as they remain members of the legistures.

CONCLUSION

The framers of the United States Constitution separated power among the three branches of government – executive, legislative and judicial – so that they may be able to check and balance one another. The protection against monarchial desprotism which the founding fathers feared was the system of checks and balances based on the doctorine of separation of provers which was argued by John Lock and articulated by M. L. Montiquieu. The structure set up by the framers has served its purpose very well as none of the branches has grown to dominate the others.

Citizens are able to influence policy by resorting to any of the three brances of government power. The division of power is designed to safeguard the liberties of citizens and give them redress when one branch may overstep its authority. It also ensures that the laws of the land are produced by a process that allows citizen’s input through their elected representatives and review by a separate body (judiciary). This is designed to prevent rule by edict. But perhaps the most important concept is accountability. The process of rule is held accountable to the people of the land.

The Tongan Constitution declares, in Clause 30, that there shall be three bodies in government, the Executive – the King, Privy Council and Cabinet, the Legislative Assembly and the Judiciary. But the clause does not guarantee separation of powers which is essential in sovereign states to ensure that the “rule of law” is observed. In Tonga it is left to the courts to decide whether to import this doctrine, if so, to what extent it should be applied.

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