WEFOUNDThe Separation of Governmental Powers: In History, in Theory, and in the Constitutions (Classic Reprint)


Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist , No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu , who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Congress of the United States ; Constitution of the United States ; Judicial Review ; President of the United States ; Presidential Powers ; Supreme Court of the United States .

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist , No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu , who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Congress of the United States ; Constitution of the United States ; Judicial Review ; President of the United States ; Presidential Powers ; Supreme Court of the United States .

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.

If there is one thing consistent about the tides of the culture wars, it is that whenever one side is emboldened, it inevitably leads to overreach . The secular Left is proving this point with gusto in the wake of the Supreme Court’s decision to nationalize gay marriage, calling for the removal of tax exemptions for churches and religious non-profits who continue to hold the tired old definition of marriage that existed all the way up until yesterday. This step, which would crush the budgets of many churches and non-profits, reveals an amusing hypocrisy of the modern Left’s turn against civil liberty: they no longer believe in the separation of church and state.

Writing at the website of Time  magazine, New York Times columnist Mark Oppenheimer called for abolishing the tax exemptions for nonprofits and instead turning over those funds to government to spend in the interests of the community. “We’d have fewer church soup kitchens — but countries that truly care about poverty don’t rely on churches to run soup kitchens”, he rationalizes. Take that, Salvation Army.

Oppenheimer’s view takes the idea of “government as simply a word for the things we decide to do together” to an unsustainable extreme – suggesting that if we do not do things via government, they do not matter, or they are by their nature insufficiently caring. Frederic Bastiat had such views in mind when he decried the socialists of his time who “accuse us of not wanting persons to eat because we do not want the state to raise grain.”

The separation of powers , often imprecisely and metonymically used interchangeably with the trias politica principle, is a model for the governance of a state . Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature , an executive , and a judiciary , which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislature are unified.

Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the Roman Republic, the Roman Senate , Consuls and the Assemblies showed an example of a mixed government according to Polybius ( Histories , Book 6, 11–13).

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist , No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu , who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Congress of the United States ; Constitution of the United States ; Judicial Review ; President of the United States ; Presidential Powers ; Supreme Court of the United States .

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.

If there is one thing consistent about the tides of the culture wars, it is that whenever one side is emboldened, it inevitably leads to overreach . The secular Left is proving this point with gusto in the wake of the Supreme Court’s decision to nationalize gay marriage, calling for the removal of tax exemptions for churches and religious non-profits who continue to hold the tired old definition of marriage that existed all the way up until yesterday. This step, which would crush the budgets of many churches and non-profits, reveals an amusing hypocrisy of the modern Left’s turn against civil liberty: they no longer believe in the separation of church and state.

Writing at the website of Time  magazine, New York Times columnist Mark Oppenheimer called for abolishing the tax exemptions for nonprofits and instead turning over those funds to government to spend in the interests of the community. “We’d have fewer church soup kitchens — but countries that truly care about poverty don’t rely on churches to run soup kitchens”, he rationalizes. Take that, Salvation Army.

Oppenheimer’s view takes the idea of “government as simply a word for the things we decide to do together” to an unsustainable extreme – suggesting that if we do not do things via government, they do not matter, or they are by their nature insufficiently caring. Frederic Bastiat had such views in mind when he decried the socialists of his time who “accuse us of not wanting persons to eat because we do not want the state to raise grain.”

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist , No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu , who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Congress of the United States ; Constitution of the United States ; Judicial Review ; President of the United States ; Presidential Powers ; Supreme Court of the United States .

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.

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist , No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu , who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Congress of the United States ; Constitution of the United States ; Judicial Review ; President of the United States ; Presidential Powers ; Supreme Court of the United States .

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.

If there is one thing consistent about the tides of the culture wars, it is that whenever one side is emboldened, it inevitably leads to overreach . The secular Left is proving this point with gusto in the wake of the Supreme Court’s decision to nationalize gay marriage, calling for the removal of tax exemptions for churches and religious non-profits who continue to hold the tired old definition of marriage that existed all the way up until yesterday. This step, which would crush the budgets of many churches and non-profits, reveals an amusing hypocrisy of the modern Left’s turn against civil liberty: they no longer believe in the separation of church and state.

Writing at the website of Time  magazine, New York Times columnist Mark Oppenheimer called for abolishing the tax exemptions for nonprofits and instead turning over those funds to government to spend in the interests of the community. “We’d have fewer church soup kitchens — but countries that truly care about poverty don’t rely on churches to run soup kitchens”, he rationalizes. Take that, Salvation Army.

Oppenheimer’s view takes the idea of “government as simply a word for the things we decide to do together” to an unsustainable extreme – suggesting that if we do not do things via government, they do not matter, or they are by their nature insufficiently caring. Frederic Bastiat had such views in mind when he decried the socialists of his time who “accuse us of not wanting persons to eat because we do not want the state to raise grain.”

The separation of powers , often imprecisely and metonymically used interchangeably with the trias politica principle, is a model for the governance of a state . Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature , an executive , and a judiciary , which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislature are unified.

Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the Roman Republic, the Roman Senate , Consuls and the Assemblies showed an example of a mixed government according to Polybius ( Histories , Book 6, 11–13).

In contrast to the United States, the separation of powers in the United Kingdom has meant little more than an independent judiciary. Because the members of the executive (the prime minister, ministers and cabinet) are also drawn from the legislature (the parliament), there is not a strict separation of these branches of government. Yet the separation of powers is still an important feature of Australia’s political system.  Like the United States Constitution, the Australian Constitution describes three functions of government and creates three institutions to exercise those functions. This is outlined in the first three chapters of the Constitution:

Section 1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The Parliament,” or “The Parliament of the Commonwealth.”

Section 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.


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