The famous Declaration of Rights, issued after the Revolution, laid down that “every society in which the separation of powers is not determined has no constitution.” The Constitution of 1791 made the executive and the legislature independent of each other, and the judges elective and independent.
For a short span of time, during the regime of Napoleon, it was defied, but the doctrine was constantly in the minds of the people. As a constitutional maxim it is jealously cherished even today.
In the United States, Montesquieu’s theory found its best expression. “We shall never know,” says Herman Finer, “whether the Fathers of the American Constitution established the separation of powers from the influence of the theory, or to accomplish the immediately practical task of safeguarding liberty and property.” But they definitely desired liberty in the sense enunciated by Montesquieu.
They also desired limits upon despotism. Independence from British suzerainty had given them the first. A short experience with legislative supremacy, after the Declaration of Philadelphia, had convinced them that concentration of power in any one institution was fraught with abuse.
While writing about the Constitution of Virginia, Jefferson wrote: “All the powers of government, legislative, executive, and judicial, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government.
It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.”
The same point was elaborated by Madison while issuing a similar warning: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.
They (the founders of our republics) seem never to have recollected the danger from legislative usurpations, which by assembling all power in the same hands, must lead to the same tyranny as it had been threatened by executive usurpations.”
If concentration of power was the evil to be avoided, was there besides executive or legislative omnipotence some third possibility? The alternative was what has come to be called Separation of Powers. In fact, Separation of Powers became a political creed with the statesmen and those engaged in the framing of the national constitution at the Philadelphia Convention.
They were not new to the theory. The governmental system of the Colonial period embodied a species of Separation of Powers. Prior to 1776, the executive branch, under the Governor, was distinct from the legislative, and controversies between them were rampant in the two decades that led up to the Independence.
With the principle of judicial review, the statesmen of that day were also equally familiar as the constitutionality of Colonial Acts could be challenged before the Judicial Committee of the Privy Council in London. “History, therefore, joined hands with philosophy in writing a separation of powers into the federal constitution.”
The influence of Montesquieu was, indeed, powerful and decisive. Madison unequivocally maintained that Montesquieu was “the oracle who is always consulted and cited on the subject.
“Whatever be the respective weights of influence in the Philadelphia Convention, the American Constitution, as Finer observes, “was consciously and elaborately made an essay in the separation of powers and is today the most important polity in the world which operated upon that principle.”
But the American Constitution did not explicitly state that powers ought to be separate. It simply distributed the powers; legislative powers were vested in Congress, the executive powers in the President, and the judicial in the Courts.
While apportioning the lion’s share of powers to one department of government the Constitution gave smaller slices to each of other departments. This was done to avoid concentration and consequent abuse of power.
The maxim with the Fathers of the Constitution was that power should be limited, controlled and diffused. “If power is not to be abused then it is necessary, in the nature of things, that power be made a check to power.”
In the field of legislation, for example, the bulk of the law-making power was placed in Congress, but the President received his share in the powers to recommend measures, to summon Congress in special session, and to veto bills.
Similarly, the Senate shared with the President his power to make appointments, declare war, and ratify treaties. The Supreme Court, by exercising the power of judicial review, asserted its claim to a portion of the legislative function.
Congress, too, acted in a judicial capacity in cases of impeachment where the House was empowered to prosecute and the Senate sat in judgment. The President could intervene in the business of the courts through his power of pardon for all offences except treason.
As portions of each function were distributed among different agencies, the Separation of Powers was really intended to result in a system of checks and balances.
The system of checks and balances had two obvious results. First, and ordinarily, unless the members of the three branches of government saw eye to eye and cooperated harmoniously, none of the principal functions of government could be adequately performed.
Second and conversely, if any department or pair of departments ventured to exceed their constitutional authority, they “could be restrained by the refusal of a third to connive.”
In this way, the Fathers of the Constitution destroyed the concert of leadership in government which is so prominent a feature of our times. Finer, thus, sums up the theory of Separation of Powers as it has worked in the United States.
He says, “Legislative procedure has come to differ essentially from that in Britain and France; financial procedure is worlds apart; there is no coordination of political energy or responsibility; but each branch has its own derivation and its morsel of responsibility.
All is designed to check the majority, and the end is achieved. At what cost?” The cost cannot be measured in terms of dollars. With powers divided between the executive and legislative departments without any means of proper coordination, there is always inordinate delay to arrive at an agreement even on pressing matters which demand expeditious disposal.
One branch of government may be operating on one policy whereas the other may follow quite a different one, particularly, when the executive belongs to one party and the Congressional majority to another.
Some Presidents have, no doubt, succeeded in bridging the gap separating them from the legislature. “But while an emergency may bring,” says Zink, “temporary coordination and the use of patronage can usually be counted upon to pave the way to some action, the National government is still torn to parts by the provision which the framers made for separation of powers.”