Separation of Powers

How the Framers of the Constitution Sought to Balance Power

The term separation of powers originated with the Baron de Montesquieu, a writer from the 18th-century French enlightenment. However, the actual separation of powers amongst different branches of government can be traced to ancient Greece. The framers of the United States Constitution decided to base the American governmental system on this idea of three separate branches: executive, judicial, and legislative.

The three branches are distinct and have checks and balances on each other. In this way, no one branch can gain absolute power or abuse the power they are given.

In the United States, the executive branch is headed by the President and includes the bureaucracy. The legislative branch includes both houses of Congress: the Senate and the House of Representatives. The judicial branch consists of the Supreme Court and the lower federal courts.

The Fears of the Framers

One of the framers of the U.S. Constitution, Alexander Hamilton was the first American to write of the "balances and checks" that can be said to characterize the American system of separation of powers. It was James Madison's scheme that differentiated between the executive and legislative branches. By having the legislature divided into two chambers, Madison argued that they would harness political competition into a system that would organize, check, balance, and diffuse power.

The framers endowed each branch with distinct dispositional, political, and institutional characteristics, and made them each answerable to different constituencies.

The biggest fear of the framers was that the government would be overwhelmed by an imperious, domineering national legislature. The separation of the powers, thought the framers, was a system that would be a "machine that would go of itself," and keep that from happening.

Challenges to the Separation of Powers

Oddly, the framers were wrong from the outset: the separation of powers has not led to a smoothly working government of the branches that compete with one another for power, but rather political alliances across the branches are confined to party lines that hinder the machine from running. Madison saw the president, courts, and Senate as bodies who would work together and fend off power grabs from the other branches. Instead, the division of the citizens, the courts, and the legislative bodies into political parties has pushed those parties in the U.S. government into a perpetual struggle to aggrandize their own power in all three branches.

One great challenge to the separation of powers was under Franklin Delano Roosevelt, who as part of the New Deal created administrative agencies to lead his various plans for recovery from the Great Depression. Under Roosevelt's own control, the agencies wrote rules and effectively created their own court cases. That enabled the agency heads to select optimal enforcement to establish agency policy, and since they were created by the executive branch, that in turn greatly enhanced the power of the presidency. The checks and balances can be preserved, if people pay attention, by the rise and maintenance of a politically insulated civil service, and constraints by Congress and the Supreme Court on agency leaders.