The Erosion of Separation of Powers

Thomas Jefferson. By: Mather Brown. 1786.

In the 1780s, there began to be a distinct erosion of the doctrine of separation of powers.

Gradually, as Americans were interacting with their elected officials, they began to see them all as delegates of the people’s power. See Gordon Wood, The Creation of the American Republic: 1776-1787, 447-48. There was a “homogenization of all political power” and Thomas Jefferson came to call the three branches of government the “three branches of magistracy.” See id. at 448 quoting Jefferson, Notes of Virginia, ed. Peden, 121.

However, it became clear that if government “were truly to promote the happiness of the people, its several powers, legislative, executive, and judicial, ‘must be so divided and guarded as to prevent those given to one from being engrossed by the other; and if properly separated, the persons who officiate in the several departments become centinels in behalf of the people to guard against every possible usurpation.” Gordon Wood, The Creation of the American Republic: 1776-1787, 449 quoting Jefferson, Notes on Virginia, ed. Peden, 121; Portsmouth N.H. Gazette, Feb. 22, 1783.

Up to this point, the effectiveness of separation of powers had been questionable at best. In the Pennsylvania Constitution, for example, the executive and judicial branches were essentially dependent on the legislature. See Gordon Wood, The Creation of the American Republic: 1776-1787, 450.

All of this talk began to change the vocabulary of Americans. Rather than discuss the “monarchical, aristocratic, and democratic elements,” Americans were talking about the “executive, legislative, and judicial functions” of government. Id. at 453 quoting Brennan, Plural Office-Holding, 159. Many began to believe that separation of powers was “the basis of all free governments.” Gordon Wood, The Creation of the American Republic: 1776-1787, 453 quoting Portsmouth N.H. Gazette, Mar. 15, 1783. Jefferson stated that it was a principle “in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Gordon Wood, The Creation of the American Republic: 1776-1787, 453 quoting Jefferson, Notes on Virginia, ed. Peden, 120.

Separation of powers is undoubtedly one of the fundamental, defining principles of American government. But it was not inherently that way. The evolution of thought about the government’s power not being a general delegation, but specific delegation of particular powers, occurred early in the Republic but had a tremendous effect on the perception of government.

Americans would come to expect that no branch of government could run rampant in its duties and responsibilities. Rather, the three branches of government would balance each other, check each other, and ensure that no one branch would take preeminence over the other two.

As explained further in A First Principle of Free Government, separation of powers would play a significant role in preventing the manifestation of tyranny or any other imbalance of power in American government. Remembering how such fundamental American values came to be is necessary to explain current American values. Then, and only then, can one identify how current values have deviated from those of the early Republic.

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