Looking at separation of powers and checks and balances

T
he constitutional principle of “separation of powers” is as casually thrown around as frisbees in the park on a Saturday afternoon, but often with far less accuracy. Presidents invoke it to defend
imaginary powers against
congressional encroachments. Members of Congress cast it into discussion to expose alleged executive abuse of power. Confusion, and not a little manipulation, abound. Americans hear it referenced, but wonder about its origins, meaning and purpose.
The doctrines of separation of powers and checks and balances are nowhere mentioned in the Constitution, yet they represent pillars of American Constitutionalism.
James Madison, chief architect of the Constitution, explained the central purpose behind the doctrine of
separation of powers: to promote liberty by preventing the concentration of power in one branch of government, which would represent the very definition of tyranny. The framers of the Constitution thus roughly separated the legislative, executive and judicial functions of government in order to prevent the same hands that made laws from executing and adjudicating the laws.
While the allocation of powers – the enumeration of powers – to the three branches reflect the general functions of government, the scheme of
separation is not perfect. The aim was not to rigidly separate the powers.
By constitutional design, as Madison explained, some functions of government are deliberately mixed. Citing the famous French scholar, Montesquieu, whom delegates to the Constitutional Convention regarded as “the oracle” on matters of separation of powers, Madison observed in Federalist No. 47 that the allocation of powers based on governmental functions “did not mean that these departments ought not to have no partial agency in, or control over, the acts of each other.”
Liberty, always the North Star in Madison’s writings, was more
effectively preserved through
overlapping powers, which would enable separate branches to check one another in the exercise of authority. In this way, Madison introduced the rationale for the doctrine of checks and balances. In Federalist 51, Madison wrote that the security against the concentration of powers “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” In words made famous through repetition in classrooms across America, Madison declared, “ambition must be made to counteract ambition, the interest of the man must be connected with the constitutional rights of the place.”
The key to making checks and balances work effectively, the framers believed, lay in this scheme of
“ambition to counteract ambition.” In this emphasis, the founders relied on a brilliant psychological insight, culled from theorists across the centuries, into the minds of politicians. Politicians desired power; the more power they acquired, the more they desired. The appetite was great. The framers thus drew upon the “dark side” of a politician’s nature and turned this vice into a virtue, making it work to the advantage of constitutional government.
Thus, for example, members of Congress, the framers believed, would seek to protect their own individual turf, which would serve the institutional interests of Congress by preventing executive efforts to aggrandize or usurp congressional powers. In this way, the “interest of the man” would fit “the interest of the place.” Members of Congress, the framers reasoned, would be unwilling to surrender their individual political power. Such stout defense would fortify the powers granted by the Constitution to Congress, and thus maintain the allocation of constitutional powers. Maintenance of the Constitution would please Americans, who ratified the Constitution, which allocated powers and responsibilities in a particular way.
But what happens if, say, members of Congress fail to protect their powers against executive encroachment or, still more puzzling, willingly abdicate their constitutional powers, functions and responsibilities? Congress, the Supreme Court has reminded us, has no authority to abandon its constitutional powers, since it is a predicate of the
separation of powers that each branch will exercise the powers granted to it by the Constitution.
Even if members of Congress should want to abdicate powers and duties in favor of greater presidential control, they cannot make that choice, since the sovereign people made the choice through drafters of the Constitution to make constitutional assignments. The Constitution was written for the people, not the
government.
We might ask why people would seek a congressional seat if they didn’t intend to exercise the authority vested in them, didn’t intend to fulfill the oath of office, but that’s a question for another time.
 
David Adler, PhD, is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. He can be reached at david.adler@alturasinstitute.com.