Separation of Powers UK

What was the purpose of the ‘separation of powers' as originally envisaged?

How does it operate in contemporary practice?

Note: Headers have been removed to show that word count is not breached by more than 10%

To answer these questions I will need to identify a few key concepts, firstly 'Separation of Powers' and what this means- Separation of powers is the idea that the three functions of government: Legislation, execution and adjudication should be dealt with by separate branches of government: Legislature, Executive and Judiciary[1]. When it comes to the phrase ‘Originally envisaged' it has to be worked out who is being referred to the- Montesquieu is the person generally linked with the phrase separation of powers which he wrote about in The Spirit of the Laws. I will speak about Montesquieu views in the first section of the essay. ‘Originally Envisaged' may however also refer to the views of the founding fathers and in particular those that contributed to the Federalist papers as they wrote numerous times about the importance of the separation of powers. (To tackle how it was originally envisaged I will make reference to documents written by these parties and extensively use quotes from The Spirit of Laws, The Federalist Papers and the American Constitution to back up my points and to analysis what they originally envisaged) I will write about this in the section after discussing Montesquieu and his views on ‘Separation of powers'. These two sections will answer the section of the question on how ‘Separation of Powers' was ‘Originally envisaged'; I will then discuss what the purpose of ‘Separation of Powers' was according with relation to Montesquieu & The Founding Fathers. I will then go onto answer the second part of the question- Outlining where ‘Separation of Powers' is not being strictly followed and where problems exist within the system and where ‘Separation of Powers' is followed in Contemporary America.

Montesquieu is an important figure when discussing Separation of Powers due to his book The Spirit of the Laws in which he outlines why the Separation of Powers is necessary and how it should be separated. Montesquieu discusses how ‘Democratic and Aristocratic states are not necessarily free ... ‘Tis necessary that by the very disposition of things power should be a check to power'[2] In other words there should be checks and balances to ensure Liberty can exist. Ensuring Liberty is a key theme in The Spirit of Laws and could be seen as the purpose of the ‘Separation of powers' according to Montesquieu. But to be able to tell if this operates successfully in contemporary practice we must look at we must look at how Montesquieu explains it- he uses the British constitution as his main example[3] seeing the British system as one that was a free state[4]. He sees the reason for this is because of the independence that exists between the different bodies- ‘Legislative, Executive and Judiciary' stating that There is no liberty, if the power of judging be not separated from the legislative and executive powers'[5] this system of power being restrained by other powers[6] is the reason according to Montesquieu why the British constitution could ensure Liberty. These regulations on power had in Montesquieu's opinion the power to stop corruption or tyranny as he believes that ‘Every man invested with power is apt to abuse it'[7] This is an argument for the separation of powers as the statement ‘Every Man' suggests that any person given absolute power will ‘abuse it', It is important to note however this does not mean that Montesquieu favoured democracy he simply believes that as long as there is separation of powers liberty is ensured he even states that most Kingdoms of Europe enjoy moderate government[8] Not because of any democratic principle but because ‘the prince who is invested in the first two powers, leaves the third to his subject'[9] (The third power referring to the Judiciary). Montesquieu places much emphasis on judicial independence, which is important to note as it will become relevant when looking at how it operates in contemporary practice as the appointments by the executive to the Supreme Court may be a potential problem. Another point to note within this section is how separate Montesquieu intended the different bodies to be- whilst he stated that they should remain separate he also mentions that if ‘The legislature think itself in danger by some conspiracy against the state ... It might authorise the executive power, for a short and limited time, to imprison suspected persons'[10] this suggests that whilst Montesquieu believed that separation was necessary he also believed that if necessary the different parts of government should be able to interact in such a way if it is deemed necessary. It is also important to make clear that Separation does not mean that the 3 different parts will not be able to communicate, indeed Montesquieu believes it necessary for example the Judiciary to be informed of law from the legislature and that they must follow the ‘exact letter of the law'[11].

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To summarise Montesquieu's views on Separation of Powers I would say that he believes that the purpose of the Separation of the three bodies of government is to ensure that power is not abused, however as mentioned previously there are some limitations to this separation which can be summed up by Montesquieu himself ‘Should abuses creep into one part, they can be reformed by those that remain sound'[12]. Montesquieu is important as he heavily influenced the founding fathers during the creation of the American Constitution and it can be seen that the founding fathers have built upon Montesquieu's writings in The Spirit of the Laws, It should be noted however that although Montesquieu was the first person to write about the Separation of in the way it is contemporary understood, there are many links to Polybius and the concept of a mixed constitution[13], Polybius also mentions separate branches of government[14] and as such is important to note along with Montesquieu when discussing separation of powers.

I will now discuss what the Founding fathers (Specifically those involved with the drafting and approval of the constitution) thought of the Separation of powers as how they ‘Originally Envisaged' is crucial to answering the second part of the question, this section will be less detailed than the section on Montesquieu as they were heavily influenced by Montesquieu (Which I will prove later) so will share much of the same purpose and views on the Separation of powers. I will look at a few key Documents from the Federalist papers- 47 and 51- and also at the American Constitution, the Constitution should give an insight into what was originally envisaged and the Federalist papers should give more of an insight into what the purpose was.

Firstly the American constitution- the phrase ‘Separation of Powers' is not found in the constitution however the principles are prevalent throughout it and the influence of the concept of ‘Separation of Powers' strong, many of the constitutions of individual states specifically mention the need for separation of powers[15] Notably Virginia- ‘That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct'[16]. Although the American constitution does not cite anything quite as clear as Virginia's section on the Separation of powers the way it is built is clearly shows the influence of Separation of powers with legislative power being granted to Congress in the first article ‘All legislative Powers herein granted shall be vested in a Congress'[17] Similarly Executive power granted to the president ‘The executive Power shall be vested in a President'[18] and Judicial power ‘The judicial Power of the United States shall be vested in one supreme Court and in such inferior courts'[19]. It is clear that whilst separation of powers is not mentioned as it is in the Virginian constitution the principle is well and truly understood and represented by the Founding Fathers and the Constitution, these three quotes were taken from the first three articles respectively, so it can safely be assumed that the Separation of Powers in some form or another was an aim of the constitution. So as ‘Originally Envisaged' the constitution shows that three distinct branches were considered necessary, with regard to what the purpose of it was we need an insight into what the Founding Fathers considered, and the Federalist papers provide such an insight which is extremely useful when trying to find out the purpose of ‘Separation of powers'. I will now discuss the relevance of the Federalist papers and conclude on what they saw the purpose as.

The Federalist papers were essentially pieces of propaganda designed to gain support for the constitution[20], they were written by Alexander Hamilton, John Jay and James Madison[21] who were all founding fathers- James Madison is of particular importance as he is considered the Father of the constitution and is said to have played a ‘Pivotal Role' in the drafting of the document[22], the papers were published anonymously but the two papers I will be looking at are said to be written by- 47 (Madison) 51 (Either Hamilton or Madison)[23]. The reason I have chosen these two papers is because they both make mention of Separation of powers and as Madison is considered the Father of the constitution it will give an insight into what the purpose of Separation of Powers was as originally envisaged by the Founding Fathers in the Constitution. Firstly Paper 47, this paper by James Madison makes it clear what the purpose of Separation of powers is- it states ‘The preservation of liberty requires that the three great departments of power should be separate and distinct'[24] so like Montesquieu the purpose is Liberty, this paper also acts to support the idea that Montesquieu was a big influence on the American Constitution with the statement ‘The oracle who is always consulted and cited on this subject is the celebrated Montesquieu'[25], as discussed in the section on Montesquieu there are caveats with the separation of powers and Madison also accepts and discusses these in this paper, using Montesquieu as his guide he considers the British constitution and how the three branches and not completely separate[26]. Paper 51 sets out in more detail how the separation of powers will work and further emphasises his purpose of support for the separation of powers ‘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'[27] the important phrase here it to control itself, this shows an understanding of the principle of Checks and Balances as this is the way in which the government can control itself, however the general theme and purpose are shown to be the preservation of liberty.

So to summarise this section I would say I have shown how both Montesquieu and the Founding fathers are agreed on the purpose of the separation of powers which is to ensure liberty, and they are both generally agreed on the idea of how this will be done- through checks and balances and the separation of the 3 branches of government, however I feel that there is one substantial difference between Montesquieu and the Founding Fathers views on the issue which is- Whilst Montesquieu makes it clear that it needn't be a democracy to ensure Liberty, Madison states that ‘dependence on the people is, no doubt, the primary control on the government'[28] also Montesquieu believes that there is need for a hereditary body[29] which is not considered by Madison or the founding fathers.

To start with I will identify the basics of how it operates, at its simplest level separation of powers can be considered to be the split of the 3 Branches of government into Legislative, Executive and Judiciary[30]- In contemporary America these are split thus:

Legislative = Congress- including both the Senate & House of Representatives

Executive = President

Judiciary = Supreme Court and lower courts[31]

This system operates in that Executive and Legislative are elected by the public and the Judiciary are appointed by the Executive and approved by the Judiciary[32] (I will critique this as a point where Separation of powers does not exist in a later section).

With separation of powers the three branches are to act as a limit to the powers of each other[33] (Checks and Balances) so I will now discuss how this operates in practice, one key way in which this exists is through impeachment, this allows the Legislative to remove the Executive from office ‘for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'[34], this could be seen as directly meeting Montesquieu's statement: ‘Should abuses creep into one part, they can be reformed by those that remain sound'[35] but it also presents a problem as it means that there is an overlap between the different branches however as I have discussed this does not mean a failure of separation of powers, it can however be considered as a potential weakness as ‘Other High Crimes and Misdemeanors' is vague and open to interpretation so the ‘Abuses of power' Montesquieu could exist here if the executive were to be removed unfairly by a Legislative with ulterior motives.

With the creation of legislation there are numerous checks and balances on the three branches of government I will attempt to point them all out in the explanation of the passage of a bill becoming law- Laws can come from either chamber of congress- and must be passed in both, this is a check on itself and shows the influence of the British model on the American one (as well as on Montesquieu) through the existence of two chambers in the legislature. If the bill is passed by both Chambers it then must be approved by the Executive- who can either veto it or pass it (Which means that the executive has a check on the power of the Legislature), if the executive vetoes it can be overridden by a 2/3 majority in both Chambers of the legislature, which is a check on the power of the executive. If the bill is passed then it has to be approved by the Supreme Court as being constitutional- which is a check on the power of all the other bodies.[36] As can be seen the amount of checks the separation of powers works well here other than with the Supreme Court having no check on it and the ability to outright reject a bill.

There are a few quirks in the American system that means Separation of Powers is not as clear cut as it could be one issue being that the vice-president is also the president of the senate[37] which is a clear overlap between the Executive and legislative, however as the Vice-President only has a casting vote[38]and does not have as much power as the president in the executive this can be seen as a technical breach rather than a problematic one. Another breach which is possibly more problematic is the appointment of judges to the Supreme Court- these are appointed by the President and confirmed by the senate[39] whilst the fact that they are confirmed by the senate means that there is a check it also means that all 3 branches overlap in this area, it can create problems for the Executive when previous Presidents have appointed judges of a certain political persuasion which can be seen as an abuse of power and therefore Separation of Powers has not been met.

To summarise this essay I would say that the Purpose of the Separation of Powers as Originally Envisaged- Which can refer to either Montesquieu or the Founding Fathers- is in both cases the Preservation of Liberty. Whether or not this operates in contemporary practice is debatable, I have been limited in this essay by attempting to answer two questions that potentially could be questions in their own right, I would like to have been able to explore further the Problems and Quirks but with the word limit of a single essay being imposed on two separate questions had to focus more on the questions at hand rather than being able to discuss these issues. I have attempted to use Primary sources as much as possible- My main references being The Spirit of Laws, American Constitution and The Federalist Papers as I feel that this improves the validity of my points.

[1] Heywood, Andrew, (2007), Politics third Edition, Palgrave Foundations, Basingstoke, Hampshire, England Pg. 339

[2] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 200

[3] David Boucher & Paul Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 250

[4] Ibid Pg. 251

[5] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 202

[6] David Boucher & Paul Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 251

[7] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 202

[8] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 202

[9] Ibid Pg. 202

[10] Ibid Pg.204

[11] Ibid Pg. 203

[12] Ibid Pg. 184

[13] Davis Lloyd, Marshall, Polybius and the Founding Fathers: The Separation of Powers, (Written 22/09/1998 Revised 02/09/2006) Available From: http://www.mlloyd.org/mdl-indx/polybius/intro.htm, (Accessed 12/12/2009)

[14] Walbank, F.W., (1990), Polybius, London, England, University of California Press Ltd., Pg. 150

[15] Vile, M.J.C., (1967), Constitutionalism and the separation of powers, Oxford, England, Oxford University Press, Pg. 119

[16] Constitution of Virginia, Article 1 Section 5, Available From http://legis.state.va.us/constitution/a1s5.htm Accessed (12/12/2009)

[17] American Constitution Article 1 Section 1, Available From http://www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)

[18] Ibid Article 2 Section 1

[19] Ibid Article 3 Section 1

[20] Dahl, Robert A., (2001), How democratic is the American Constitution?, Yale University Press, United States Pg. 64

[21] Ibid Pg. 64

[22] Library of Congress, http://www.loc.gov/wiseguide/may05/constitution.html, Accessed (12/12/2009)

[23] Library of Congress, http://thomas.loc.gov/home/histdox/fedpapers.html, Accessed (12/12/2009)

[24] Library of Congress, http://thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)

[25] Library of Congress, http://thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)

[26] Ibid

[27] Library of Congress, http://thomas.loc.gov/home/histdox/fed_51.html, Accessed (12/12/2009)

[28] Library of Congress, http://thomas.loc.gov/home/histdox/fed_47.html, Accessed (12/12/2009)

[29] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 206

[30] Heywood, Andrew, (2007), Politics third Edition, Palgrave Foundations, Basingstoke, Hampshire, England Pg. 339

[31] American Constitution, Available From http://www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)

[32] McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 47

[33] David Boucher & Paul Kelly, (2009), Political Thinkers from Socrates to Present, Second Edition, Oxford University Press, Oxford, England Pg. 251

[34] American Constitution, Article 2 Section 4, Available From http://www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)

[35] Montesquieu, Carrithers, David Wallace Ed. (1977), The Spirit of Laws, London, England, University of California Press Ltd. Pg. 184

[36] McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 47

[37] American Constitution, Article 1 Section 3, Available From http://www.archives.gov/exhibits/charters/constitution_transcript.html Accessed (12/12/2009)

[38] Ibid

[39] McKay, David (2009), American Politics and Society, Blackwell Publishers, Printed in Singapore by C.O.S. Printers Pte Ltd. Pg. 47