Power`s Separation Essays - Constitutional Law, Philosophy Of Law

Power`s Separation It has proved true, historically, that there is a natural tendency of governments to assume as much power as possible. To prevent this from happening in the United States, the framers of the Constitution divided the functions of the federal government among three branches: the executive branch, legislature or the lawmaking branch and the judiciary. These should be separate and enjoy equal power and independence. This separation of powers is in direct contrast to the government in Britain. Their Parliament is the single governing unit. Members of the executive--the Cabinet and the Prime Minister--are members of Parliament. The highest court of appeal is the House of Lords. The separation of powers was also in contrast to the government under the Articles of Confederation. The Articles provided for no separate executive branch. The president was the presiding officer of the Congress. There was no national court system at all. The framers of the Constitution decided on a government in which the three main functions would be held by three separate branches. The Congress was empowered to make laws. The president was empowered, through the departments and agencies of the executive branch, to enforce the laws. The president is thus the head of the bureaucracy--the non-elected officials of government. The Supreme Court was established as the highest judicial authority. John Adams referred to this three-part arrangement as a system of checks and balances that protect the people from authoritarian or arbitrary rule. In addition to distributing power among the three branches of the federal government, the Constitution also distributes it among the states and the people. The Tenth Amendment specifically reserves all "powers not delegated to the United States" to the "States respectively, or to the people." Within each state there are many other governmental units. Each local government, from the smallest village to the largest city, has its necessary powers. There are taxing bodies, such as school districts, that have the authority they need in order to operate. Before continuing to mention how the separation of powers is applied in the United States presidential system, let me briefly explain the structure of the presidential system. The Presidential System United States Government The federal government of the United States was created by the Constitution, which went into operation in 1789 when the first Congress convened and George Washington took the oath of office as president. The government is called federal because it was formed by a compact (the Constitution) among 13 political units (the states). These states agreed to give up part of their independence, or sovereignty, in order to form a central authority and submit themselves to it. Thus, what was essentially a group of 13 separate countries under the Articles of Confederation united to form one nation under the Constitution. When the Declaration of Independence was issued in 1776, it used the term United States of America. Until the Constitution was adopted and ratified, however, the 13 states did not really form one nation. They each held onto so many powers individually, including conducting foreign policy and trade negotiations, that the Continental Congress could only do what the states allowed. The Articles were never the law of the land to the extent that the Constitution is. In essence, the United States as a nation did not come into existence until the Constitution began to function as the framework of the government. Once the Constitution was in place, tension between the states and the federal government did not automatically cease. Many political thinkers believed that the states were really the supreme authority. According to this viewpoint, states could nullify acts of the federal government that were disagreeable to them. One of the strongest proponents of this view was John C. Calhoun, senator from South Carolina. His chief opponent was Chief Justice John Marshall. Calhoun's position, called states' rights, has persisted to the present. It was seriously undermined, however, by the American Civil War. Since that war the federal government has gained much power at the expense of the states. The best known characteristic of the presidential system is the separation of powers. The three principal functions of the government are the formal promulgation of the law, its administration, and its adjudication. These are established in separate and co-ordinate branches. We call them the legislative, the executive and the judicial; they are independent of one another, but are at the same time made interdependent. (The judicial branch enjoys a considerable degree of independence in all nations subscribing to the Anglo-American tradition of jurisprudence, regardless of whether they have adopted the presidential system.) CONGRESS: The Legislation