Doctrine of the Separation of Powers
Although of great antiquity the modern basis for the doctrine of the
separation of powers can be traced back to the writings of
commentators such as John Locke, who in one of his books written in
1690 observed that "the three organs of government must not get in one
hand." The doctrine was further examined by the French jurist
Montesquieu who based his exposition on the British constitution of
the early 18th Century. In simple terms the doctrine recognises three
functions of government, namely legislative, executive and judicial.
In its purest form the doctrine holds that each of these three
functions should be vested in separate organs of government, with no
overlap, as to concentrate more than one function in any one organ
presents a threat to individual liberty. If the doctrine is followed
the same persons should not form part of more than one organ. For
example ministers should not sit in parliament. One organ should not
exercise the functions of another.
In the United States Constitution of 1787 separation of powers was
clearly expressed. Each of the three primary constitutional functions
was vested in a distinct organ. Legislative power was vested in
Congress consisting of a House of Representatives and a Senate,
executive power was vested in the President and judicial power was
vested in the Supreme Court and other federal courts as established by
Congress.
The president of the USAholds office for four years and does not need
the support of Congress to continue in office. He is separately
elected from Congress directly from the people. Neither he nor members
of his Cabinet can si...
... middle of paper ...
...d
States. Rather both Law Lords are speaking in support of a well
established convention of the UK Constitution, namely that Parliament
makes the law and the judiciary interprets it. This convention derives
from the concept of Parliamentary sovereignty in a system where the
legislature is elected and accountable and in which the judiciary is
required to be impartial and independent in the application of law.
All in all it would only be fair to say that the doctrine of
separation of powers is necessary in controlling the delegation of
power among organs of government and ensuring the proper use of that
power. We have examined the US and the British separation of power and
although in the US things are clearer, we can say that power is
properly controlled in both cases. If it wasn't results would have
been obvious.
Separation of power prevents the power from falling all into the hands of one or a few and therefore having tyranny. (Madison FP # 47) It prevents this by having the U.S Government split into three branches, Legislative Branch (Congress), Executive Branch (President), Judicial Branch (The Courts). The Con...
Separation of powers means what it says. Power id distributed among the three branches of government: the executive branch, the legislative branch, and the judicial branch. In Document B of the DBQ Packet, James Madison quotes, “’the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may be justly pronounced the very definition of tyranny…. (L)iberty requires that the three great departments should be separate and distinct.’” In other words, if one person or group owns too much power in a government, then they are considered a tyrant, whether the person (or group) who gained the power was elected into power, born into it, or declared themselves ruler. If the government was not divided into three branches and was only a single department, then too much power would be granted to that government, defying Madison’s ideals of a tyranny-free country. With the government split into different departments, each branch owns its own set of powers. The legislative branch creates laws, the executive branch administers the laws, and the judicial branch interprets laws. Separation of powers guards against tyranny because it helps prevent the development of a branch of government that may ratify, carry out, and portray laws as they wish. Power is distributed among branches ensuring that all offices play a role in the United States’
Madison’s, The Federalist, No. 51 discusses separation of powers in the government and more of the Republican system of government. Madison says outright that “we see it particularly displayed in all the subordinate distributions of power, where the constant aim is to decide and arrange the several officers in such manner as that each may be a check on the other.”
It also says that the branches are separated and distinct. Separation of powers protects against tyranny because it guarantees the powers so that not only one person or group gets them.
"This inquiry will naturally divide itself into three branches- the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, the persons whom that power ought to operate," writes Alexander Hamilton in the Federalist #23 in reference to the separation of powers. The basic concept here is the idea of the federal government being divided into three separate branches that would balance excessive democracy through a system of checks on each other. The three branches, respectively known as the legislature (Article I), the executive (Article II), and the judiciary (Article III), were designed to entice the opponents of the Co...
The farmers of our Constitution recognized the need for separate powers as well as checks and balances among the executive, legislative and judicial branches. This in turn helps to "provide for the common defense". Separation of powers prevents one branch from becoming excessively dominant over the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the blessings of liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.: In order to accede to the preamble and adhere in its goals, the Constitution ensures this is by clearly stating the authority of the Congress in Article I Section 8 and the authority of the President in Article II Section 2. These fixed powers in the Constitution clearly state that one cannot act without permission or authorization of another. It is designed to that one cannot take action without consent of the other branch. This is prevalent in Article I Section 7 that states the process of how a law is passed. The fact that there are clear steps to the initiation of a law states the importance of separation of powers so that a single dominant branch does not arise.
Our Constitution establishes three branches of government and defines their very existence. The reason for the three branches is to separate the powers. The phrase “separation of powers” isn’t in the constitution, but it best explains the intention of the Constitution. It is essential that the assignment of lawmaking, enforcing and interpreting be spread out among the separated powers to ensure that all power doesn’t fall into the lap of one group, or even a power-hungry individual. The powers of which I’m speaking that were intentionally separated by way of the Constitution are the Legislative Branch, Executive Branch and finally, the Judicial Branch.
In Donald Robinson’s, Slavery in the Structure of the American Revolution, he eloquently articulates the original purpose of separation of power in the United States of America: to protect private interests and freedom. Considering that separation of power is viewed as a means to prevent a unitary and centralized government, the issue of slavery influenced the adoption of separation of power. While equality is a quintessential reflection of America, the power of states’ rights prevents states from being consistent with American values. In this paper, I will examine the principle concept of separation of power in the context of ensuring private interests, in particular, the institution of slavery and segregation. I will argue how decentralized political power fundamentally prevents unity within a nation because of its intent to protect the private interests in the United States of America.
It has been suggested that there is currently a culture war taking place in the United States. Depending on who you listen to, you will get vastly different descriptions of the two sides. Some will insist that the fight is between the upholders of strong Christian, moral values and godless, secular-minded, moral relativists. Others will tell you that defenders of religious freedom and rational thought are battling religious fundamentalists who wish to impose their radically conservative views on the whole of the American populace. Regardless of which way you view the debate, the entire so-called “culture war” boils down to a basic disagreement over the place of religion in public life. In light of President Bush’s recent nominations of John Roberts and Samuel Alito to the Supreme Court, I believe it is prudent to have a thorough discussion of the Constitutional principle of separation of church and state, because how the Supreme Court rules on issues related to this principle in the future will have a profound impact on how we define ourselves as a country. In order to conduct a thorough inquiry into this debate, I believe it is necessary to start at the beginning and attempt to discern how our founding fathers viewed religion’s place in public life, and how they relayed this view in the First Amendment. After I have done this, I will try to apply some of the principles I have gathered to current hot-button social issues which are likely to come before the Supreme Court in the not too distant future.
Before the adoption of the United States Constitution, the U.S. was governed by the Articles of Confederation. These articles stated that almost every function of the government was chartered by the legislature known as Congress. There was no distinction between legislative or executive powers. This was a major shortcoming in how the United States was governed as many leaders became dissatisfied with how the government was structured by the Articles of Confederation. They felt that the government was too weak to effectively deal with the upcoming challenges. In 1787, an agreement was made by delegates at the Constitutional Convention that a national judiciary needed to be established. This agreement became known as The Constitution of the United States, which explicitly granted certain powers to each of the three branches of the federal government, while reserving other powers exclusively to the states or to the people as individuals. It is, in its own words, “the supreme Law of the Land” (Shmoop Editorial Team).
There are several key constitutional principles, such as popular sovereignty, federalism, republicanism, individual rights, and so on. The United States is a democracy and residences are considered the source of the government powers. Since America is well known for freedom, it is obvious that the government does not have powers to control everything. Limited government is another type of the constitutional principles as well.
The powers that were shared between the two governments were called concurrent powers. One of them includes enforcing the laws. Today there is a branch in our government that does the lawmaking job and that branch is called the Legislative Branch. When the Legislative Branch makes these laws, the president and other members of the Congress then decided whether or not to enforce these laws or not. The lawmaking process is very thorough process. Sometimes they can make a huge difference and other times they won't. Laws usually tell us what to do or keep us from doing what we want. Although some are pointless others help us live a safe life and to stay out of trouble. If you choose to break a law the consequence that you receive may be minor or
...ponsibilities that each must uphold, for an organized but powerful government. Although, each branch objectives are different, each branch takes part in determining whether a bill becomes a law. This shows that a government broken down into branches justifiably serves our country balancing the powers of our government.
One of the biggest threats to a thriving country is a tyrannical government. To prevent this, the Founders declared that the power of the government must be separated. This principle, the Separation of Powers, states that, to prevent tyranny, one governmental branch cannot have supremacy over the country. The power must be divided among three branches. These are the executive, judicial, and legislative branches. The Separation of Powers is of equal importance now as when the Constitution was written because it prevents tyranny.
Lisa Webley and Harriet Samuels defined the separation of powers as a theory or doctrine that describes the way in which a state organises the distribution of power and function between its different parties. The separation of powers is divided into three branches which are the executive, legislative and Judiciary.