A First Principle of Free Government

The Signing of the Constitution of the United States.

The separation of powers in the government of the United States has “come to define the very character of the American political system.” Gordon Wood, The Creation of the American Republic: 1776-1787, 151.

The idea of separation of powers is rooted in antiquity, but many of the Founders looked to the political theory of the English in the 17th Century, during the English Revolution and English Interregnum. Id. During those periods, separation of powers was used to isolate “the legislative functions of Parliament from the executive functions of the government.” Id. John Locke, in his Second Treatise, referred to separating the “legislative, executive, and federative (or foreign affairs) powers” in government. Id.

Montesquieu also developed a belief that separation of powers was beneficial, leading him to be called “the immortal Montesquieu” at the Continental Congress. Id. at 152. Montesquieu believed that “there is no liberty, if the judiciary power be not separated from the legislative and executive.” Id. quoting Montesquieu, Spirit of the Laws, ed. Newmann Bk. XI, Sec. 6, 151-52.

James Madison, in 1792, would call separation of powers “a first principle of free government.” Gordon Wood, The Creation of the American Republic: 1776-1787, 152 quoting James Madison, Philadelphia National Gazette, Feb. 6, 1792, Gaillard Hunt, ed., The Writings of James Madison (N.Y. 1900-10), VI, 91. However, despite Madison’s words, and others who had similar beliefs at the time of the Revolution and the early Republic, not everyone had such views of separation of powers at the time.

Some historians have theorized that the early Americans meant for separation of powers to be limited to “nothing more than a prohibition of plural officeholding.” Gordon Wood, The Creation of the American Republic: 1776-1787, 156. In reality, the early Americans appeared to be most concerned with insulating the judiciary and legislature from the executive branch. Id. at 157.

The principle of separation of powers is one of the key underpinnings of the American system of government. Few could question how invaluable it has become for the American government to thrive.

There is an obviousness to why the three branches of government should be separate. However, one point that needs unpacking is Montesquieu’s insistence on separating the judiciary from the executive and legislative branches of government. In America, that separation, in combination with the case Marbury v. Madison, has allowed for the judiciary to become a branch of government that is continually monitoring the other branches’ actions and ensuring those actions comply with the United States Constitution and the laws of the United States.

The absence of the judiciary, or the absence of a judiciary with such an overseeing role, would be hugely detrimental to the health and wellbeing of the United States. While it may be difficult to measure the impact of the implementation of the principle of separation of powers in the United States, there is no question that it has propelled America above other countries.

Separation of powers has likely single-handedly prevented a rogue president or rogue legislature from taking unlawful action, which could likely lead to a slippery slope toward more unlawful actions. The aggregation of those unlawful actions could easily topple the stability of the American federal government. As many other countries, past and present, have shown, a seemingly powerful government can be toppled with relative ease. Often, that toppling can happen from inside, with branches of the government overreaching and hollowing out the other branches.

Ultimately, separation of powers, when effectively enforced, can be the best prophylactic measure for a government to ensure stability. While it has become a defining feature of the American governing style, it should be thought of as a key principle of government. Just as Madison proclaimed.


Leave a Reply