Hillsdale Constitution 101: “The Separation of Powers: Ensuring Good Government”

The separation of powers helps to ensure good government at the same time it guards against tyranny. Independent in function but coordinated in the pursuit of justice, the three branches of government—legislative, executive, and judicial—must each have enough power to resist the encroachment of the others, and yet not so much that the liberty of the people is lost.

A political regime has three dimensions: the ruling institutions, the rulers, and the way of life of the people. In America, the rulers—the people themselves—and their ruling institutions—staffed by the people’s representatives—aim at securing the Creator-endowed natural rights of all citizens. The Framers did this in two ways. “Vertically” considered, our ruling institutions are defined by federalism, or the division of power between the national, state, and local governments. “Horizontally” considered, the ruling institutions of the federal government itself are separated and co-equal.

In the American regime, the Constitution is the “supreme law of the land.” No one branch is superior to it; all three branches have a duty to abide by it. While each of the three branches plays a unique role in the passage, execution, and interpretation of laws, all of the branches must work together in the governing process.

The legislative branch is closest to the people. It is also the branch in which the danger of majority tyranny lurks. The passions of the people are reflected most in the House of Representatives, where the members are elected for terms of two years. The Senate, with its six year terms, was designed to be a more stable legislative presence than the House.

The defining characteristic of the executive is “energy.” The president can act swiftly and decisively to deal with foreign threats and to enforce the law, and can also provide a check on legislative tyranny through the veto.

Members of the judiciary, the third branch of government, must exercise judgment in particular cases to secure individual rights. Through “judicial review,” the judiciary is given the authority to strike down laws that are contrary to the Constitution. But judicial review is not judicial supremacy; even the Supreme Court must rely upon the other branches once it has rendered judgment.

The checks that each branch can exercise against the encroachment of the others ultimately protect the liberties of the people. The separation of powers promotes justice and good government by having each branch perform its proper function. This institutional design allows the sovereign people to observe and to know which branch is responsible for which actions in order to hold each to account. The sense of mutual responsibility built into the separation of powers is a reflection of the moral and civic responsibility all Americans share.

Will Morrisey is the William and Patricia LaMothe Chair in the U.S. Constitution and Professor of Politics at Hillsdale College, where he has taught since 2000. He teaches courses in American politics, political philosophy, and comparative politics.

Dr. Morrisey is the author of eight books on statesmanship and political philosophy including Self-Government, The American Theme: Presidents of the Founding and Civil War; The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government; Regime Change: What It Is, Why It Matters; Culture in the Commercial Republic; and Reflections on DeGaulle. He is currently working on a study of the geopolitical strategies of Winston Churchill and Charles de Gaulle. He has written for the New York Times, Washington Times, the American Political Science Review, the Claremont Review of Politics, and Interpretation: A Journal of Political Philosophy, of which he has served as an editor since 1979. He received his B.A., summa cum laude, from Kenyon College, and his Ph.D. in political science at the New School University.

The cancer of Obama”care” now extends to choosing a “Public health expert for the World Bank Presidency.”
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The major problem with THE NINE SUPREMES is that they are chosen for political reasons by the POTUS, and then they vote as an un-accountable democracy, for a Nation that is NOT a Democracy, but a REPUBLIC.

As a result, THE NINE SUPREMES commonly vote 5 to 4 on most issues. Constitutionality is seldom a consideration, and their up-coming ruling on Obama”care” will prove my point.

Now is the time to stand and deliver to address our grievances to the dictates of the Left.

Oppose the dictates of Dictator Baby-Doc Barack!

Our ONLY chance to ABOLISH Obama”care” rests with THE NINE SUPREMES, because Romney will be defeated by Obama.

IMHO, if Romney is anointed as the RNC Nominee, THE main issue in the National Election, Obama”care,” will be taken off the campaign table. Hence, Romney will not only lose, but suffer another crushing, and sadly typical, RINO defeat.

To those who want poster ideas, here are a few ideas for demonstration posters:

Obama”care” was robo-signed by Congress, and is therefore illegal.

Obama”care” was 2700 pages long, and is still being written, but not by Congress: witness the forced contraception coverage recently added by HHS Regulators.

Obama”care” has caused “The Catholic Spring.”

Obama”care” reduces competition, and therefore is illegal by the 1890 Sherman Anti-Trust Law.

Obama”care” is designed to be a US Federal Government monopoly, with no competition.

Obama”care” also is illegal according to the US Constitution, because it violates our freedom of choice.

Will THE NINE SUPREMES notice any of these three violations? I seriously doubt it.

Impeached Bill Clinton proved that the US President is above US Federal Law, so anything that the President wants he gets, regardless of the Federal Laws that he has violated.

As the writer points out, judicial review and judicial supremacy are not the same.

From the beginning, the Founders' Constitution placed "the People" as the sovereigns over their constitutionally-structured form of self-government.

On another thread today on a related topic, I posted the following:

Thomas Jefferson anticipated such an instance as we have today in the so-called "health care" case before the Court, as well as its possible impact on the liberty of "the People." The Constitution provides the remedy, as he points out in one of the quotations shown below.

The Founders' passion was for individual liberty and the means to protect it through a written constitution which would "govern both the governed" and those who were delegated limited powers in government.

We ought to remember that our Constitution's separating, dividing, limiting, checking and balancing of certain delegated powers was intended to leave the sovereign power in the hands of the Constitution's "ONLY Keepers" (Justice Story), not in the hands of ANY branch of the government it structured--including the Supreme Court.

We, in retrospect, are in a position to appreciate the wisdom of their work and to question their reasoning, as revealed in their writings and their various positions.

On the other hand, we also are able to see how their warnings about dangers to liberty might develop, depending on the ideas of Executive, Congress, or Supreme Court members during a particular time period in America's history.

Already, we have seen abuses by each of the three branches, which tend to reveal the wisdom of the Founders' limitations on power in each branch, including that of the Court.

As to Jefferson and his fear of the idea that a Supreme Court, such as one which might soon exist, might endanger liberty in violation of the Framers' intent, how can one doubt that possibility, given the political climate of 2012?

From StreetLaw.org, come the following Jefferson quotations on the subject:

"2."But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
3."But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
4."The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
5."To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
6."In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

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