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Constitutional Topic: Separation of Powers

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the Separation of Powers. The concept of Separation of Powers is embodied in the Constitution in the 1st Article, in the 2nd Article, and in the 3rd Article. Another Topics Page, on The Government provides details about the make-up of the various branches and may also be of use.

Primary sources for this topic page are Comparative Politics by Gregory Mahler (Schenkman Publishing, 1983) and Comparative Politics by Gregory Mahler (Prentice Hall, 2000). Individual pages from Wikipedia and Canada in the Making were also helpful in keeping this page up to date.


The American Example

The United States Constitution is deliberately inefficient.

The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances.

Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3.

Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch.

For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution.

All of these checks and balances, however, are inefficient. But that's by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant.

The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The checks can be found on the Checks and Balances Page.

The following are the powers of the Legislature: Passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The checks can be found on the Checks and Balances Page.

The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The checks can be found on the Checks and Balances Page.

Historical Examples

Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts were refined by contemporaries of the Framers, and those refinements influenced the establishment of the three branches in the Constitution.

Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656 Oceana, James Harrington brought these ideas up-to-date and proposed systems based on the separation of power. John Locke, in his 1690 Civil Government, second treatise, separated the powers into an executive and a legislature. Montesquieu's 1748 Spirit of the Laws expanded on Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the theories into practical applications.

When discussing Separation of Power, is it helpful to contrast the American System to the governments of other nations. This list below is far from a representative sample of nations or systems. The United States, Britain, France, Canada, and Mexico are actually more similar than they are different, especially when the whole range of nations is taken into account. However, sometimes the smaller differences between similar systems can be interesting and illustrative. It is left to the reader to conduct studies of more disparate systems.

The British Example

The British Parliamentary system works like this: There are two houses of the legislature. The upper house, the House of Lords, has traditionally consisted of the nobility of Britain: dukes, earls, viscounts, barons, and bishops. As of 2005, the very existence of the House of Lords is in question. There are some calling for its abolition, but a combination elected/lifetime appointment system seems more likely. A popular proposal calls for 80% of the body to be elected and the name to change to the "Second Chamber." In 1999, the House of Lords had over 1300 members. Today, there are just over 700 members. The House of Lords serves a judicial function as a court of final appeal, but as a legislative body, is widely regarded as ineffectual. It can delay passage of bills issued by the lower house, though it cannot veto them.

The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from one of 646 electoral districts. In the Commons, majority rules. The majority party makes all the laws. The minority has little voice. The Prime Minister, Britain's closest approximation of the American President, is an MP chosen by the majority. The judiciary has no power of review as in the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional.

The head of state, analogous still with the American President, is the monarch (King or Queen). The monarch must approve of all bills, though the process today is little more than a rubber stamp. The Speaker of the House of Commons, elected by the House, acts as the referee in debate between the majority and the minority. The MPs in the House of Commons sit for five years, or until the monarch (at the Prime Minister's behest) dissolves Parliament and calls for new elections. The Prime Minister also heads the Cabinet.

In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no power of review. The House of Lords holds little more than delaying powers. By tradition, the monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime Minister, is a member of the Commons.

The French Example

In France, the President is elected for five year terms by the people to a powerful position. The President can, and has, dissolve Parliament and call for new elections. The President appoints the Prime Minister. Together, the President and Prime Minister head the executive branch. The President does not have veto power over legislation, but can ask Parliament to reconsider a bill. The Prime Minister heads The Government, akin to the American Cabinet. Most bills passed into law originate with the Government. The President presides over the Cabinet, and has vast emergency powers. The French President, de jure does not have many powers, but because of the French election system, he usually has great popular support and is able to leverage that into political power. When the President's party holds power in the legislature, he is quite powerful, but it is quite diminished when the legislature is not controlled by his party.

The Prime Minister, chosen by the President from the majority party in the National Assembly (the lower house), has power that varies in direct correlation to that of the President. The Prime Minister chooses the members of the Government and is head of the military and the civil service. Deputies of the Assembly are elected by the people for five year terms. There are currently 577 deputies. The Assembly can vote to dissolve the Government, but in reality, such a move is unlikely.

The Senate, the upper house, is more powerful than the House of Lords in Britain, but not by much. Senators are elected by the various local officials from across the country to six year terms. There are currently 321 senators.

There is a written French Constitution. Laws, after passage but before enactment, can be reviewed by the Constitutional Council. Review is either requested (for most laws) or mandatory (for laws affecting the Constitution). Its nine members consist of three appointed by the Government, three by the Assembly, and three by the Senate. The Council is designed almost like the U.S. Supreme Court, but it has little of the power of that court.

For the French, the majority of the power lies in the hands of the Government. If the President is of the same party as the Government, he can also wield considerable power. The Assembly is highly limited to legislate on topics specifically spelled out in the Constitution; the Senate has far less power than the Assembly. The Constitutional Council has not proven to be the force in French government that it appears to have been designed to be.

The Canadian Example

Canada was a subject of Britain for several centuries, and its system has many similarities with the British system. Until 1982, Canada did not have full control over its own constitution. Prior to 1931, the British Parliament could still legislate for Canada, but in 1931, much of that control was passed to the Canadians. More control passed in 1949, but full control was not gained until 1982, when the Constitution Act of 1982 gave Canada full control over its own constitution. Officially, the monarch of Canada (also the monarch of the United Kingdom) remains the Canadian head of state and is represented in governmental affairs by a governor-general. De facto, however, the monarch has no real control of any kind over Canada. In an interesting circular system repeated throughout the former British commonwealth, the governor-general is "recommended" to the monarch by the Canadian Prime Minister and the governor-general in turn de jure appoints the Prime Minister from the members of the House of Commons.

Canada is a federal system akin to that of the United States, with each of its ten provinces having a great deal of control over internal policy. Canada's three territories have less autonomy. Canadian federalism differs from American federalism, however, in that the provinces have specific powers reserved to them and all other powers belong to the federal government. The federal government has veto power over all provincial law-making. The branches of government are a mix of the British and American systems. The legislature is parliamentary and bicameral, split between the House of Commons and the Senate. The members of the Senate are recommended by the House of Commons and appointed by the governor-general. Appointment is for life or until age 75. There are currently 105 members. Members of the House of Commons are elected by the people; elections must be held at least once each five years. There are currently 308 members. The executive is composed of a Prime Minister and a cabinet.

A privy council is in place that works to supplement and support the Prime Minister and the cabinet. The members of the council include the Chief Justice of the Supreme Court; the staff is comprised of career public servants, ensuring continuity even when there is a change in the leadership party in the parliament. The Privy Council Office is separate and distinct from the Prime Minister's Office. The former is concerned with the efficient running of the government and is generally considered non-partisan. The latter is completely partisan and is concerned with the advancement of the platform of the Prime Minister and the ruling party.

The judiciary is more powerful in Canada, much like that of the United States; the Supreme Court has nine members which serve for life or until age 75. Each province has its own judicial system as well; these provincial courts work at the lowest level in the system, with the Supreme Court at the highest level and with superior courts in between. Each province has a Court of Appeal, and in all cases, the Supreme Court is a final court of appeal. The federal courts also act as the sole courts of Canada's three territories. The constitution allows the Supreme Court to be used as an advisory court, issuing opinions on the constitutionality of laws without any actual dispute needing to be in play.

The Mexican Example

Mexico has had a tumultuous history, as it has had to deal with foreign invaders, poverty, and its strong neighbor to the north. What Mexico has for a political system has evolved with all of these influences. Its current constitution has been in force since 1917 and it has been amended at least 450 times since its enactment. The Constitution is divided into two major parts, the Individual Guarantees and the definition of the structure of the government. One notable feature of the Guarantees is that the freedoms enumerated therein are reserved "by any individual," regardless of citizenship or status. The Mexican government is explicitly divided into the same three branches as the United States, legislative, executive, and judicial. It is a federal republic like its North American neighbors, with 31 states dividing the varied geography, plus one Federal District. Like U.S. states and Canadian provinces, much of the everyday law is left to the Mexican states' jurisdiction.

The Mexican legislature, the General Congress, is bicameral and divided between a 128-member Senate and a 500-member Chamber of Deputies. The members of the Chamber are elected every three years. 300 members are elected in an at-large election where seats are distributed to parties on a national proportional basis. The remaining 200 are allocated to the states in proportion to their population. Deputies cannot serve more than one term in succession.

Senators are elected every six years. Each state has four Senators as does the Federal District. Two of the four are allocated to the majority political party; a third is allocated to the next highest minority party; the fourth is selected based on proportional representation. Senators may not be reelected to a seat.

Certain subjects are the exclusive domain of one house of the Congress; others must be agreed to by both houses. Legislation may be introduced by any member of Congress, the President, or a state legislature. A Permanent Committee, comprised of 15 Deputies and 14 Senators, meets when the Congress is in recess.

The Mexican executive is the President, elected to a single six-year term. The President is directly elected by the people. In the case of disability, the Congress can designate an interim President and call for new elections. The President is the head of state and head of government. Constitutionally, he is held to the will of the Congress - he cannot leave the country, for example, without the permission of the Congress.

The judicial system of Mexico divides the national courts into four hierarchical parts. At the top is the Supreme Court of Justice, followed by the Electoral Tribunal, Circuit Courts, and District Courts. The Supreme Court is made up of eleven Ministers; the Court can operate en banc (as a whole) or in divisions of five ministers. The Chief Minister is elected every four years by the ministers from within the Court; no one person can be immediately reelected to the Chief position. Ministers are appointed to the Court for 15 year terms. The federal courts act as courts of appeal for the state courts, and act as courts of appeal for themselves according to the previously noted hierarchy. Only through special rulings known as jurisprudencias can the decision of a higher court become legally binding on all lower courts.

Conclusions

Is the American system superior to any of these, or to any other, system of government? That depends on where you sit. The French and the British might scoff at the fact that our head of state, the President, has no power to make laws. They might cringe at the thought that judges can render the will of the people, in the form of a duly passed law, null and void. Canadians might think that state powers ought to be enumerated; Mexicans might marvel at the longevity of some career American politicians.

Americans might look with amusement at the institution of the British monarchy, and its continued hold, if only on paper, on Canada. Americans might cringe at the British thought of majority rule with no written constitution to be used as a guide or rule book. We might worry that the French Presidency has the potential to turn tyrannical by the misuse of emergency powers. We might worry that a Mexican judiciary, without lifetime tenure or a solid stare decisis system might lead to incoherent judicial policy.

But recall that each of these nations, and the hundred others in this world, have political and social traditions that sometimes date back a thousand years. Despite what Americans might think are odd institutions and traditions in France, Britain, Canada, Mexico, and elsewhere, these are all prosperous nations. The systems work in the context of each nation, even if the details could not work in some others.



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