Separation of Powers

The purpose of this paper is to discuss the Separation of Powers doctrine built into the Constitution. Discussion will cover the origins of the doctrine, the factors that made it attractive to the founding fathers, and the question of its usefulness in modern America. Political theorists as far back as Aristotle had discussed the merits of various forms of government. The point had been made over and over again that to have all governmental authority vested in a single person or organization is to make it easy for despots to seize power.The more a society and government aspires to democracy, broad-based suffrage, and respect for individual rights, the more it would need to disperse power over a number of institutions and officials. The theory was clear, but finding a practical way to apply it was not obvious. Congress under the Articles of Confederation had those aspirations, but found that the way it was attempting to disperse power instead produced paralysis.In fact, the American e xperience with the Confederation Congress gave the fledgling United States a set of positive reasons for wanting separation of powers, to go along with the negative reasons derived from colonial experience under the British Parliamentary system. There had once been a separation and balance of powers in the British system, at least for the upper classes. As long as the monarch and the House of Lords still had independent power and authority, they were able to counterbalance the House of Commons.But after the British Civil War, when Great Britain had the opportunity to experiment with being a republic, with unitary government, and even with military dictatorship, the Parliamentary system was fundamentally changed. The Restoration of Charles II did not reintroduce a balancing factor. Charles was perfectly clear that he reigned at the pleasure of Parliament. His unfortunate brother James did not understand this, and his obstinacy led directly to the Glorious Revolution: the day when Par liament simply had James arrested and exiled to France.One may suppose that what was most glorious about that revolution is that it was peaceful: not a shot was fired, no one was even injured. (That James later invaded northern Ireland with a French mercenary army is a different issue, most political theorists seem to think. ) Parliament next simply hired William of Orange and his bride-to-be, Princess Mary, as co-monarchs, and arranged the glorious spectacle of their arrival in London, royal wedding, and double coronation. It would next hire George I of the House of Hanover. It was this Parliament, whose authority was absolute, that governed the American colonies.Any law it passed was final; there was then no institution that could declare a law passed by Parliament to be ounconstitutional. o The only check on its authority was the will of the voters who elected the members of Parliament. This is a major reason why the American colonists made such an issue of their lack of represen tation in Parliament. The rhetoric against King George III in the Declaration of Independence is a vestige of British custom; it is Parliament that has committed all the outrageous acts agaainst the colonies, and it is Parliament that is being attacked.Americans generally fail to grasp how centralized power had become (and to some extent still is) in the British system. There were and are no state governments in the British system, not for the shires, and not for what had once been independent countries; there is only the national Parliament and tiny local governments at the town level. In the eighteenth century Parliament also wanted there to be no independent legislatures in the colonies, and felt free to override colonial legislative measures at its own pleasure.Of course, the colonial legislatures went ahead and acted independently in almost all local matters, but Parliament? s refusal to recognize their authority was another reason why the colonial legislators supported the Ame rican Rebellion, as the English called it. In the British Parliamentary system, there is also no distinction between legislative and executive powers. The Prime Minister is elected by the members of the majority party in Parliament, and thus becomes the head of government. The Prime Minister? s cabinet functions essentially as the standing Executive Committee of the Parliament.It is structurally impossible for the Prime Minister to have one policy and Parliament another. If a majority of members of Parliament disagree with the Prime Minister? s decisions, a vote of no confidence will immediately remove the Prime Minister from office and begin the process of setting up a new government, that is, a new Executive Committee. The British Parliament thus cannot be in a state of deadlock such as sometimes seems to paralyze the American government when the Democrats control Congress and the Republicans have the Presidency, or vice versa.However, there is also nothing in the British system t o keep Parliament from pursuing a disastrous policy, as it has in Northern Ireland, whenever its members are overcome by mob psychology. The unicameral Congress created by the Articles of Confederation resembled the British Parliament in not separating the legislative and executive powers. There was supposed to be a balance of power between the interests of the states represented in Congress, as well as between the state governments and the national government.However, what there was in practice was a neutralizing of power: opposing forces or concepts, when embodied in the same persons, instead of having their separate advocates, simply canceled each other out. It thus became clear that there were positive reasons for wanting separation of powers in a new form of American government. A legislature could do a better job of creating laws if it were not burdened with the task of overseeing their execution. Likewise, an executive branch could be more effective in carrying out laws if it s authority were independent of the legislative branch.Similarly, there had to be an independent judiciary that could rule on legality, not only of how laws were carried out, but also of the laws themselves, so that Parliament? s trick of passing laws that were unchallengable could not be repeated in the American system. The new American system could not have been unitary, because from the beginning it was clear that one of the structural problems that the new country faced was how to balance the authority of thirteen independent nation-states against the authority of the union that they were jointly creating.The Confederation Congress did not solve this problem because it did not grant enough authority to the central government. Powers that are not equal cannot be balanced, and so cannot be separated: the stronger will always tend to overcome the weaker. One lasting achievement of the Confederation Congress was its provision that every new state to be admitted to the union would ha ve to become fully self-sustaining as an independent nation-state before it could be admitted, so that all states within the union would deal with each other as equals.One brilliant provision of the new Constitution was the compromise that created a bicameral legislature. The Senate, where each state has two votes, recognizes the original autonomy of the states, whereas the House reflects the actual growth of the population. It was equally brilliant to provide that, whereas the authority of Congress came from the states, the authority of the President would come from the people of the whole union. Their powers would thus be equal, balanced, and separate.It is sometimes argued that American government would be more efficient, could solve problems more quickly, if there were less separation of powers, if the checks and balances did not slow the wheels of progress. It is not clear how governmental powers could be made less separate, since the principle has been woven so thoroughly into American government at every level. Aside from that, it seems unrealistic to suppose that the human frailties which called for the separation of powers when the Constitution was written have somehow been cured during the last two centuries.The checks and balances and separations of power in the American system have the overall net effect of forcing people to compromise, of preventing extremist approaches to social problems from gaining a foothold in government. It is sometimes thought that having Congress and the President be of different parties was intended to be one of the checks and balances in government. Not so: the plan was to have them be of the same party. It is also thought that the deadlocks that occur under these conditions are a problem that must be solved, for example, by having the President or a Premier be elected by the majority party in Congress.However, it is actually not obvious that there is any problem to be solved here at all. When the President is of the maj ority party in Congress, then the compromises that lead to a legislative bill being passed and signed are made between the liberal and conservative members of the majority party. When the President belongs to the minority party, then these compromises are made between the members of the two parties. Although it is commonly thought that Democrats are much more liberal than Republicans, in fact the spectra of liberal and conservative members in each of the two parties are almost identical. Europeans often comment that America is the only democracy governed by two moderate parties. ) There thus seems to be little objective reason for tampering with the current traditional system of separation of powers. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York: Collier, 1910. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York: Collie r, 1910. This valuable volume can be found in many libraries.It gives the texts (sometimes in translation) of important documents that are discussed more often than they are read. There is a freshness to read the Vinland documents and the words of Columbus and Vespucci first reporting their discoveries. It is informative to read the precise wording of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the Six Nations (of the League of the Iroquois). History should when possible be done with primary documents, of course; this volume makes some of them easier to find. Separation of Powers ‘The separation of powers, as usually understood, is not a concept to which the United Kingdom constitution adheres. ’ The doctrine of separation of powers was perhaps most thoroughly explained by the French Jurist Montesquieu (1989), who based his analysis on the British Constitution of the early 18th century. This essay will discuss the doctrine of separation of powers, its meaning and importance within the United Kingdom’s un-codified constitution. It will analyse the relationship between the Executive, Legislature and the Judiciary and how the United Kingdom does not strictly adhere to the doctrine. Montesquieu (1989) argued that to avoid tyranny, the three branches of Government, the Legislature, the Executive and the Judiciary should be separated as far as possible, and their relationship governed by ‘checks and balances’ (Montesquieu, 1989), Montesquieu (1989) described the divisions of political powers between the three branches and based this model on his perception of the British Constitutional System, a system which he perceived to be based on a separation of powers between King, Parliament and the law courts. Originally it was the Monarch who had all the power, however, it has now been transferred. The Legislature, or law making function, which covers actions such as the enactment of rules for society. The Executive, or law applying function, which covers actions taken to maintain or implement the law, defend the state, and conduct internal policies. Finally, the Judiciary, or law enforcing function, which is the determining of civil disputes and the punishing of criminals by deciding issues of fact and applying the law. These functions of Government should be carried out by separate persons, or bodies and that each branch should carry out its own function. For example, the Legislature should not judge nor should the Executive make laws. The Legislature, Executive and the Judiciary should also all have equal legal status so each could control the excessive use of power by another branch. The  British  Constitution  is fundamentally different to  the  US constitutional model and its fragmented structure. The  American model is a deliberately designed political body constructed with precision by  the  18th century ‘founding fathers' and maintained to  the  present day by an entrenched codified document. By contrast, the  British constitutional model has evolved and adapted over  the  centuries, deriving from statute law, customs and monarchical power among various sources. Such contrasting constitutional evolution has led to differing interpretations and applications  of  the  theory  of  the  separation  of powers. In essence,  the  separation  of  powers  within Britain's constitutional system tends to be far less explicit and somewhat blurred in comparison to  the  more rigid US system  of  government. Indeed, some would say that  the  basic principles  of  the  separation  of  powers  are not specifically adhered to within  the British political model. The  most obvious evidence  of  this is reflected in Britain's parliamentary system  of  government, as opposed to a presidential type in the  USA, where ‘the  assemblies and executives are formally independent  of  one another and separately elected'. In practice this means that in  the  USA the  President and members  of  the  legislature (Congress) are elected separately and occupy completely different political branches, whereas in  the  UK  the most senior elected members  of  Parliament also form  the  executive branch  of  government. This more fused political structure leads to a situation where the  Prime Minister and Cabinet (the  executive) are also elected members  of  Parliament (legislature), creating a scenario that conflicts with  the  essence  of the  separation  of  powers. The  British political system also had  the  historic position  of  Lord Chancellor possessing  the  greatest theoretical power, being part  of  the  executive (Cabinet), legislature (House  of  Lords) and  the  head  of  the  judiciary simultaneously. Such a concentration  of  power is broadly prohibited in  the  USA and other western democracies due to  the  nature  of  their codified constitutions. Such constitutional developments have led to  the  creation  of  political circumstances in  the  UK  whereby  the  executive has gradually come to dominate  the legislature, despite  the  British political tradition  of  sovereignty ostensibly residing in Parliament. This scenario has led to allegations  of  excessive power within  the  executive and  of  an ‘elective dictatorship', with ‘public policy originating in cabinet and being presented to a party-dominated House  of Commons'. In such an environment, a government with a significant parliamentary majority, e. g. Labour since 1997, can maintain control  of  both  the executive and  the  legislature, with Parliament becoming a mere ‘rubber-stamp'  of  approval in  the  process  of  creating legislation. The  judiciary, symbolized by  the  role  of  the  Lord Chancellor who is a member  of  the  ruling party, has over  the  years appeared to have been manipulated by  the  governing regime in a way that  the  US Supreme Court could never be. Such trends  of  excessive executive power have been exacerbated by dominant Prime Ministers such as Margaret Thatcher and Tony Blair. However, in recent years  the  British government appears to have accepted this constitutional imbalance and has taken specific measures to enhance its version  of  the  separation  of  powers, addressing its rough edges and tackling some  of  the  growing criticisms  of  executive dominance that has been a consequence  of  the  UK's constitutional development. This process has been evident in a number  of  key constitutional reforms, starting with  the  Human Rights Act  of  1998, a piece  of  legislation that has created more explicit safeguards concerning  the  distribution  of  political power within  the  UK. In particular it appears to have provided additional  powers  to  the  branch  of  government that is often overshadowed within  the  UK's political system, namely the  judiciary. This Act has subsequently enforced  the  need for British law-makers to strictly adhere to  the  principles  of  human rights when passing legislation in order to remove  the  prospects  of  legal challenges at a later stage. After this Act was passed, one  of  the  most prominent judicial challenges under human rights legislation occurred in December 2004, when  the  Law Lords declared that  the  detention  of  eight terrorist suspects without trial at Belmarsh Prison was in conflict with  the  suspects' human rights. In practice, as evident in  the  Belmarsh case, it means that legislation that derives from Parliament, under  the control  of  the  executive, can now be more closely scrutinised and challenged by  the  judiciary, bolstered by an enhanced human rights framework. In this context, Parliament: ‘retains its sovereign status†¦.. if  the  courts cannot reconcile an Act  of  Parliament with  the  European Convention on Human Rights, they do not have  the power to override†¦.. that legislation†¦.. (but)  the  courts can declare  the  legislation incompatible with  the  European Convention on Human Rights and return  the  Act to Parliament for revision' . Thus, a clearer  separation  of  powers  now appears to be in place as a result  of  the  Human Rights Act. However, while  the  Act does provide added powers  of  judicial scrutiny over  the  executive and legislative branches in their law-making role, Parliament retains ultimate sovereignty and can change the  law as it wishes, in spite  of  judicial criticism. In terms  of  ignoring such judicial interventions, any government would probably cause itself considerable political damage in doing so, but it has  the  right to do so nevertheless. In this respect,  the  UK  Human Rights Act is not as robust in preserving fragmented government and civil liberties as  the  US Bill  of  Rights is, which it has been compared to. Indeed,  the  current British Conservative opposition has even talked  of  abolishing this legislation, and this would have implications for tackling  the  effectiveness  of  the  separation  of  in  the  UK. Britain modernised its constitutional model with further legislative and institutional reforms such as  the  Constitutional Reform Act (2005). A key element  of  this Act was  the  creation  of  a Judicial Appointments Committee that limited executive patronage in appointing  the judiciary, as well as a British Supreme Court, reflecting a more explicit  separation  of  judicial. This new court has replaced  the  Law Lords as  the  highest Court  of  Appeal in  the  UK. The  Law Lords have in many ways symbolised  the  blurring  of  the  branches  of government in  the  UK, with their dual role as interpreters  of  the  law on behalf  of  the  judiciary, but also as law-makers due to their membership  of  the House  of  Lords. This Act also significantly reduced  the powers of  the  Lord Chancellor, formerly  the  most powerful position in British politics with a foothold in all government branches. The  Law Lords and Lord Chancellor were increasingly viewed as nachronisms within  the  UK  political system and subsequently deemed to be in need  of  significant reform as part  of  the  process  of  refreshing Britain's implementation  of  the  separation  of  theory. a In conclusion, it is recognised that certain degree of power and functions between the three organ s do overlap, which suggest that although each organ functions within its own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate its own procedure is a clear example of the existence of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.