Liberty Under Law: Separate Branches, Balanced Powers

Saturday, September 21, 2013 - by Catherine Fields

     Dwarfed amid the glass and steel towers of present-day Philadelphia, the Old State House stands proudly, refusing to acquiesce to the burgeoning modern metropolis.  Though two centuries have dramatically altered the skyline, the hall where the constitutional delegates hammered out a new instrument of government, seems locked in a distant past.  These delegates have long since passed away and most have been largely forgotten, yet the Constitution they forged more than two hundred years ago has outlived its architects.  The United States Constitution, now in its third century of governance, immortalizes principles that transcend its eighteenth-century setting.


     Surely, the 1780s was the most critical decade of our national experience.  From redcoats to ratification, they were years accented with conflict.  The Philadelphia Convention offered a remarkable, though quite controversial, solution to the disappointing weaknesses of the Confederation government.  The art of political compromise, a skill indispensible to self-governance, resulted in the Constitution as a powerful, eloquent, yet immensely practical legal instrument.  Our national charter was not written simply to resolve the economic and political turmoil of the 1780s.  Rather, Chief Justice John Marshall asserted in 1819 (McCulloch v. Maryland) that, “Ours is a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” (“Determining the Facts”).  Although not a perfect document, the charter that the Philadelphia framers produced reflects a clear view of the nature of governors and the governed, a fact which has been a key to the Constitution’s success.  Examination of the practical character and basic principles that pervade the Constitution, and the text on which the powers and limitations of our government are based, provide a clear understanding of the resilience of this remarkable cornerstone of our government.


     The Constitution is not a static, dusty document; it is a practical tool for governing.  The success of the Constitution is primarily due to the founders’ fundamental understanding of man and the document’s inherent adaptability.  The Constitutional framers wrote with a realistic view of human nature.  They recognized man’s desire for freedom and his capacity to govern, but they also had a clear understanding of man’s tendency toward selfishness and corruption by power.  This attitude of distrust toward human nature led our founders to divide authority within the national government and to build in certain checks and balances to prevent the concentration and abuse of power.





Our Constitution has provided a stable, practical guide for governing because the men who wrote it understood both their capacity to rule and their need for restraint.  Patrick Henry reflected this awareness when he boasted, “The Constitution is not an instrument for government to restrain the people; it is an instrument for the people to restrain the government----lest it come to dominate our lives and interests” (Grant 67).


     Limited government is the predominant theme in the Constitution, underlying many of its other themes.  This principle of limited government is inherent in the Constitution’s form as a written document, establishing it as the supreme law of the land.  The simple purpose of limiting government is to protect individual liberty.  Since the framers understood that unchecked, concentrated power was simply another form of tyranny, they built certain obstacles into the system that would hinder the expansion of state power without harming its effectiveness to govern.    These limitations involve the principles of separation of powers and checks and balances.  As a safeguard against any group or individual gaining too much power, the Constitutional framers divided the federal power into three branches of government:  the legislative branch, dealt with in Article I; the executive branch (president), the topic of Article II; and the judicial branch, explained in Article III.


     Our nation’s founders were greatly influenced by the writing of French political philosopher Montesquieu, who coined the term “separation of powers.”  He considered it vital to create separate branches of government with equal but distinct powers, writing, “When the legislative and executive powers are united in the same person or body, there can be no liberty” (“Baron de Montesquieu”).  In broad terms, the Constitution provides authority for Congress to write the laws that govern the country, the president to execute and enforce the laws, and the courts to interpret the laws.  Though these branches are separate, they are not independent but interdependent.  In fact, their responsibilities often intersect and require cooperation between the branches for the national government to function properly.


     Although separation of powers is often thought to be synonymous with checks and balances, there is an important difference.  If there was only a division of power in the national government, then one branch could expand its power and, ultimately, dominate the other branches.  Lord Acton echoed this very concern when he proclaimed, “Power corrupts, and absolute power corrupts absolutely” (“Famous Quotations”).  The principle of checks and balances thwarts such an accumulation of power.  For example, Congress passes a bill to become a law, but the president may veto the bill if he opposes it.  However, his veto may be overridden by a two-thirds vote in both houses of Congress.  The president also has the power to appoint justices and other top-level officials and to form treaties, but the Senate must approve his appointments and treaties.  The Supreme Court may nullify acts of both Congress and the President if a majority of justices interprets an act as unconstitutional.  In Federalists 47 and 48, James Madison argues convincingly for the importance of balancing separate governmental powers with Constitutional checks, writing:  “The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many… may justly be pronounced the definition of tyranny” (Beliles and McDowell 191).  Certainly, checks and balances hinder the concentration of power, thereby protecting personal liberty.


     The underlying principles of our Constitution were not invented in Philadelphia; they were gathered by the delegates from years of careful study of governments and political thinkers, as well as from difficult lessons learned from the failed Confederation.  All of these basic principles deal in some way with the issue of power:  how to divide, balance, limit, and distribute governmental power.  After apportioning most of the powers of government to the states through Federalism, our founders went even further to separate the few and limited powers of the national government into three branches that would check each other.  The Constitutional framers forged a working balance with these principles that has provided a cornerstone for ordered liberty, true self-government, and personal liberties that has made America a model of governance for millions living under repressive regimes around the world.

(This essay was written and won First Place in both the Chattanooga Bar Association Law Day Essay Contest and the Tennessee Bar Association Law Day Essay Contest in the spring of 2006, when Catherine was in 10th grade at GPS.   She received her B.S. from St. John’s College in Annapolis, Md., in 2012 and is pursuing her M. Div. degree at Gordon-Conwell Theological Seminary in South Hamilton, Mass.) 



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