Separation of Powers and Checks and Balances

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47, political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier.1 Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters.2 The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention.3 Theory as much as experience guided the Framers in the summer of 1787.4

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed.5 The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously.6

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation,7 but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties.8 Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers.9 In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue.10 (James Madison).

In the Federalist No. 47, Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution.11 According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 12 Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty.13 . Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 14 Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 15

To achieve the principles articulated by Madison in the Federalist No. 47, the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance,16 while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach.17 The Senate’s role in appointments and treaties provides a check on the President.18 The courts are assured independence from the political branches through good-behavior tenure and security of compensations,19 and, through judicial review, the courts check the other two branches.20 The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches.21

1: The Federalist No. 47 (James Madison).
2: The Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]” The Constitution of Virginia of 1776, reprinted in 10 Sources and Documents of United States Constitutions 52 (William F. Swindler ed., 1979). See also 5 id. at 96. Similarly, the Massachusetts Constitution of 1780 provided: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.”
3: The Federalist No. 51 (James Madison) ( “In republican government the legislative authority, necessarily, predominates.” ). See also id. No. 48. This theme continues to influence the Court’s evaluation of congressional initiatives. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991). But compare id. at 286 n.3 (White, J., dissenting).
4: The intellectual history of the Confederation period and the Constitutional Convention is detailed in Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969).
5: See, e.g., M.J.C. Vile, Constitutionalism and the Separation of Powers (1967).
6: The Federalist No. 47 (James Madison).
7: U.S. Const. art. I, § 7.
8: Id. art. II, § 2, cl. 2.
9: See, e.g., The Federalist No. 47 (James Madison) ( “[O]ne of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. . . . The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” ).
10: Id. Nos. 47–51 (James Madison).
11: Id. No. 47 (James Madison).
12: Id.
13: Id. Nos. 47–49.
14: Id. No. 51.
15: Id.
16: U.S. Const. art. I, § 1.
17: Id. art. I, § 7.
18: Id. art. II, § 2, cl. 2.
19: Id. art. III, § 1.
20: Id.; Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803).
21: U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6. For a more detailed discussion of the separation of powers and checks and balances, see Intro.7.2 Separation of Powers Under the Constitution and Intro.7.1 Overview of Basic Principles Underlying the Constitution.