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Welcome back! Today, we journey through the philosophical roots of the separation of powers principle, which dates to the 17th Century.
According to scholar Charles Kessler, the initial context of the separation of powers:
“was the English Civil War, when the idea of separated powers first appeared in the pamphlets and essays of parliamentary writers who distinguished between legislative and executive powers in order to subordinate the executive to the legislative. The aim of such republicans as John Milton and Philip Hunton was to establish the rule of law by guaranteeing that those who made the law could not execute it and that those who executed it could not make it for the sake of their private advantage. In effect, of course, the doctrine was anti-monarchical, inasmuch as it reduced the King to the status of an "executive" (that is, someone who carries out the will of another).”
Today, we take a look at the separation of powers ideas put forth by Enlightenment philosophers Locke, Montesquieu, and Blackstone, and examine their influence on the Founding Fathers.
The Enlightenment Philosophers
John Locke
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John Locke was a 17th century English political philosopher who saw legislative power as the ultimate governing authority and the executive power as the administrator and enforcer of the law. In his Second Treatise of Government, Locke stated that it is “too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they exempt themselves from obedience to the laws they make.” |
Baron Montesquieu
Baron de Montesquieu was an 18th century French political philosopher whose political treatise, The Spirit of the Law, divided the powers of government into executive, legislative and judicial categories. He argued that, in order to protect liberty and prevent the abuse of government power, these powers should be exercised by separate institutions and officials:
“When the legislative and executive powers are united in the same person … there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrrannical laws, to execute then in a tyrrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.” (The Spirit of the Law) |
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William Blackstone
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William Blackstone was an 18th century English jurist and political philosopher. Blackstone favored the separation of powers to promote efficiency in government (by counteracting the slow, deliberative legislative branch with an expedient executive) and protect individual liberty. In his Commentaries, Blackstone argued, “where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power as may tend to the subversion of it’s [sic] own independence, and therewith of the liberty of the subject.” |
Pop quiz!
The U.S. Constitution vests executive power in the president. What does executive power entail?
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The power to interpret the law
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The power to implement and enforce the law
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The power to draft and pass legislation
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The power to overrule state laws
The Federalist Papers
The Federalist Papers is a collection of 85 essays written by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius" advocating for ratification of the Constitution to replace the Articles of Confederation. The essays were published together as The Federalist Papers in 1788.
James Madison strongly argued for the separation of powers in The Federalist Papers. He described the need for a system of checks and balances to maintain the separation of powers in Federalist 51:
“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others… Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.”
Read On:
What's Next?
Tomorrow, we examine the impact of the modern administrative state on the separation of powers. How has the growth of the administrative state affected the principle in practice? Stay tuned!
Go Deeper:
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