Separation of Powers

The purpose of this paper is to discuss the Separation of Powers school of thought built into the Constitution. Discussion will cover the origins of the doctrine, the occurrenceors that made it attractive to the founding fathers, and the oral sex of its usefulness in modern America. Political theorists as far back as Aristotle had discussed the merits of various forms of government. The point had been made over and over again that to reserve all governmental berth vested in a single person or organization is to make it easy for despots to seize source.The more a fiat and government aspires to democracy, broad-based suffrage, and respect for individual correctlys, the more it would need to disperse power over a number of institutions and officials. The theory was clear, but finding a hard-nosed way to apply it was not obvious. telling under the Articles of bond had those aspirations, but found that the way it was attempting to disperse power instead produced paralysis.In po int, the American experience with the confederation Congress gave the flight-emitting diodegling United States a set of exacting reasons for wanting disengagement of powers, to go along with the negative reasons derived from colonial experience under the British Parliamentary system. There had once been a insularism and balance of powers in the British system, at least for the upper classes. As long as the monarch and the House of Lords still had independent power and authority, they were able to counterbalance the House of Commons.But after the British Civil War, when Great Britain had the opportunity to experiment with organism a republic, with unitary government, and even with military dictatorship, the Parliamentary system was fundamentally changed. The Restoration of Charles II did not reintroduce a balancing factor. Charles was perfectly clear that he reigned at the pleasure of Parliament. His unfortunate brother crowd together did not understand this, and his obstinacy light-emitting diode directly to the Glorious Revolution the day when Parliament evidently had James arrested and exiled to France.One may suppose that what was to the highest degree glorious about that revolution is that it was peaceful not a shot was fired, no ane was even injured. (That James later invaded northern Ireland with a French mercenary army is a diametrical issue, about political theorists seem to think. ) Parliament next simply hired William of Orange and his bride-to-be, Princess Mary, as co-monarchs, and arranged the glorious spectacle of their arrival in London, royal wedding, and double coronation. It would next hire George I of the House of Hanover. It was this Parliament, whose authority was absolute, that governed the American colonies.Any fair play it passed was final there was then no institution that could declargon a constabulary passed by Parliament to be ounconstitutional. o The only check on its authority was the will of the voters who elected th e members of Parliament. This is a major reason why the American colonists made such an issue of their lack of representation in Parliament. The empty talk against King George III in the Declaration of Independence is a vestige of British custom it is Parliament that has committed all the outrageous acts agaainst the colonies, and it is Parliament that is being attacked.Americans generally fail to grasp how primaevalized power had become (and to some extent still is) in the British system. There were and are no cite governments in the British system, not for the shires, and not for what had once been independent countries there is only the national Parliament and tiny local governments at the t deliver level. In the eighteenth century Parliament in addition wanted there to be no independent legislatures in the colonies, and felt free to override colonial legislative measures at its own pleasure.Of course, the colonial legislatures went ahead and acted independently in al well-ni gh all local matters, but Parliament? s refusal to recognize their authority was other reason why the colonial legislators supported the American Rebellion, as the English called it. In the British Parliamentary system, there is also no distinction amidst legislative and administrator powers. The run aground Minister is elected by the members of the legal age party in Parliament, and thus becomes the head of government. The Prime Minister? s footlocker functions essentially as the standing executive director Committee of the Parliament.It is structurally impossible for the Prime Minister to have one policy and Parliament another. If a mass of members of Parliament disagree with the Prime Minister? s decisions, a vote of no confidence will immediately remove the Prime Minister from business office and begin the process of setting up a new government, that is, a new Executive Committee. The British Parliament thus cannot be in a state of deadlock such as sometimes seems to p aralyze the American government when the Democrats control Congress and the Republicans have the Presidency, or vice versa.However, there is also nothing in the British system to keep Parliament from pursuing a disastrous policy, as it has in Northern Ireland, whenever its members are overcome by mob psychology. The unicameral Congress created by the Articles of Confederation resembled the British Parliament in not separating the legislative and executive powers. There was supposed to be a balance of power between the interests of the states represented in Congress, as well as between the state governments and the national government.However, what there was in practice was a neutralizing of power opposing forces or concepts, when embodied in the same persons, instead of having their separate advocates, simply canceled each other out. It thus became clear that there were positive reasons for wanting disengagement of powers in a new form of American government. A legislature could do a better job of creating truths if it were not burden with the task of overseeing their execution. Likewise, an executive branch could be more effective in carrying out laws if its authority were independent of the legislative branch.Similarly, there had to be an independent court that could rule on legality, not only of how laws were carried out, but also of the laws themselves, so that Parliament? s trick of passing laws that were unchallengable could not be repeated in the American system. The new American system could not have been unitary, because from the beginning it was clear that one of the structural problems that the new country faced was how to balance the authority of thirteen independent nation-states against the authority of the union that they were jointly creating.The Confederation Congress did not solve this problem because it did not grant enough authority to the central government. Powers that are not equal cannot be balanced, and so cannot be separated the s tronger will always tend to overcome the weaker. One lasting achievement of the Confederation Congress was its provision that every new state to be admitted to the union would have to become fully self-sustaining as an independent nation-state before it could be admitted, so that all states within the union would deal with each other as equals.One brilliant provision of the new Constitution was the compromise that created a two-chambered legislature. The Senate, where each state has two votes, recognizes the original autonomy of the states, whereas the House reflects the actual growth of the population. It was equally brilliant to propose that, whereas the authority of Congress came from the states, the authority of the chairman would come from the people of the whole union. Their powers would thus be equal, balanced, and separate.It is sometimes argued that American government would be more efficient, could solve problems more quickly, if there were less breakup of powers, if the checks and balances did not slow the wheels of progress. It is not clear how governmental powers could be made less separate, since the principle has been woven so thoroughly into American government at every level. Aside from that, it seems unrealistic to suppose that the human frailties which called for the separation of powers when the Constitution was written have somehow been cured during the last two centuries.The checks and balances and separations of power in the American system have the overall net effect of forcing people to compromise, of preventing extremist approaches to social problems from gaining a foothold in government. It is sometimes conception that having Congress and the President be of different parties was intended to be one of the checks and balances in government. Not so the plan was to have them be of the same party. It is also thought that the deadlocks that occur under these conditions are a problem that must be solved, for example, by having the Presi dent or a Premier be elected by the mass party in Congress.However, it is actually not obvious that there is any problem to be solved here at all. When the President is of the majority party in Congress, then the compromises that lead to a legislative bill being passed and signed are made between the liberal and conservative members of the majority party. When the President belongs to the minority party, then these compromises are made between the members of the two parties. Although it is commonly thought that Democrats are much more liberal than Republicans, in fact the spectra of liberal and conservative members in each of the two parties are almost identical. Europeans often comment that America is the only democracy governed by two lower parties. ) There thus seems to be little objective reason for tampering with the current traditional system of separation of powers. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Char les W. Eliot. New York Collier, 1910. Bibliography Eliot, Charles W. , ed. American Historical Documents, 1000-1904. The Harvard Classics, ed. Charles W. Eliot. New York Collier, 1910. This valuable volume can be found in many libraries.It gives the texts (sometimes in translation) of important documents that are discussed more often than they are read. There is a freshness to read the Vinland documents and the words of Columbus and Vespucci kickoff reporting their discoveries. It is informative to read the precise wording of the Fundamental Orders of Connecticut (the first written state constitution), of the Articles of Confederation, and of the 1794 Treaty with the Six Nations (of the League of the Iroquois). History should when possible be done with primary documents, of course this volume makes some of them easier to find.Separation of PowersThe separation of powers, as usually understood, is not a concept to which the United Kingdom constitution splits. The doctrine of separ ation of powers was perhaps most thoroughly explained by the French Jurist Montesquieu (1989), who based his analysis on the British Constitution of the early 18th century. This essay will discuss the doctrine of separation of powers, its meaning and grandeur within the United Kingdoms un-codified constitution. It will analyse the relationship between the Executive, Legislature and the Judiciary and how the United Kingdom does not stringently adhere to the doctrine.Montesquieu (1989) argued that to avoid tyranny, the triple branches of Government, the Legislature, the Executive and the Judiciary should be separated as far as possible, and their relationship governed by checks and balances (Montesquieu, 1989), Montesquieu (1989) described the divisions of political powers between the three branches and based this model on his perception of the British Constitutional System, a system which he perceived to be based on a separation of powers between King, Parliament and the law court s. Originally it was the Monarch who had all the power, however, it has now been transferred.The Legislature, or law making function, which covers actions such as the enactment of rules for society. The Executive, or law applying function, which covers actions taken to maintain or implement the law, defend the state, and conduct internal policies. Finally, the Judiciary, or law enforcing function, which is the determining of civil disputes and the punishing of criminals by deciding issues of fact and applying the law. These functions of Government should be carried out by separate persons, or bodies and that each branch should carry out its own function.For example, the Legislature should not judge nor should the Executive make laws. The Legislature, Executive and the Judiciary should also all have equal legal status so each could control the excessive use of power by another branch. TheBritishConstitutionis fundamentally different totheUS constitutional model and its fragmented str ucture. TheAmerican model is a deliberately knowing political body constructed with precision bythe18th century founding fathers and maintained tothepresent day by an entrenched codified document.By contrast, theBritish constitutional model has evolved and adapted overthecenturies, deriving from statute law, customs and monarchical power among various sources. Such contrasting constitutional evolution has led to differing interpretations and applicationsofthetheoryoftheseparationof powers. In essence,theseparationofpowerswithin Britains constitutional system tends to be far less explicit and somewhat blurred in analogy tothemore rigid US systemofgovernment. Indeed, some would say thatthebasic principlesoftheseparationofpowersare not specifically adhered to withinthe British political model.Themost obvious evidenceofthis is reflected in Britains parliamentary systemofgovernment, as opposed to a presidential type in theUSA, where theassemblies and executives are formally independent ofone another and separately elected. In practice this means that intheUSA thePresident and membersofthelegislature (Congress) are elected separately and occupy completely different political branches, whereas intheUKthe most senior elected membersofParliament also formtheexecutive branchofgovernment.This more fused political structure leads to a situation where thePrime Minister and Cabinet (theexecutive) are also elected membersofParliament (legislature), creating a scenario that conflicts withtheessenceof theseparationofpowers. TheBritish political system also hadthehistoric positionofLord Chancellor possessingthegreatest theoretical power, being partoftheexecutive (Cabinet), legislature (HouseofLords) andtheheadofthejudiciary simultaneously.Such a tightfistednessofpower is broadly prohibited intheUSA and other western democracies due tothenatureoftheir codified constitutions. Such constitutional developments have led tothe inceptionofpolitical circumstances intheUKwherebytheexe cutive has gradually come to dominatethe legislature, de venomtheBritish political traditionofsovereignty ostensibly residing in Parliament. This scenario has led to allegationsofexcessive power withintheexecutive andofan elective dictatorship, with public policy originating in cabinet and being presented to a party-dominated Houseof Commons.In such an environment, a government with a significant parliamentary majority, e. g. Labour since 1997, can maintain controlofboththe executive andthelegislature, with Parliament becoming a mere rubber-stampof boon intheprocessofcreating legislation. Thejudiciary, symbolized bytheroleoftheLord Chancellor who is a memberoftheruling party, has overtheyears appeared to have been manipulated bythegoverning regime in a way thattheUS Supreme Court could never be.Such trendsofexcessive executive power have been exacerbated by dominant Prime Ministers such as Margaret Thatcher and Tony Blair. However, in recent yearstheBritish government appears to ha ve accepted this constitutional imbalance and has taken specific measures to enhance its var.oftheseparationofpowers, addressing its rough edges and tackling someofthegrowing criticismsofexecutive dominance that has been a consequenceoftheUKs constitutional development.This process has been evident in a numberof observe constitutional reforms, starting withthe compassionate Rights Actof1998, a pieceoflegislation that has created more explicit safeguards concerningthedistributionofpolitical power withintheUK. In special(a) it appears to have provided additionalpowerstothebranchofgovernment that is often overshadowed withintheUKs political system, namely thejudiciary. This Act has subsequently enforcedtheneed for British law-makers to strictly adhere totheprinciplesofhuman rights when passing legislation in order to removetheprospectsoflegal challenges at a later stage.After this Act was passed, oneofthemost prominent judicial challenges under human rights legislation occurred in De cember 2004, whenthe rectitude Lords declared thatthedetentionofeight terrorist suspects without trial at Belmarsh Prison was in conflict withthesuspects human rights. In practice, as evident intheBelmarsh case, it means that legislation that derives from Parliament, underthe controloftheexecutive, can now be more fast scrutinised and challenged bythejudiciary, bolstered by an enhanced human rights framework.In this context, Parliament retains its sovereign status.. ifthecourts cannot reconcile an ActofParliament withtheEuropean Convention on Human Rights, they do not havethe power to override.. that legislation.. (but)thecourts can declarethelegislation incompatible withtheEuropean Convention on Human Rights and drive hometheAct to Parliament for revision . Thus, a clearerseparationofpowersnow appears to be in place as a resultoftheHuman Rights Act.However, whiletheAct does provide added powersofjudicial scrutiny overtheexecutive and legislative branches in their law-making role, Parliament retains ultimate sovereignty and can change thelaw as it wishes, in spiteofjudicial criticism. In termsofignoring such judicial interventions, any government would probably cause itself considerable political damage in doing so, but it hastheright to do so nevertheless. In this respect,theUKHuman Rights Act is not as robust in preserving fragmented government and civil liberties astheUS rouseofRights is, which it has been compared to.Indeed,thecurrent British Conservative opposition has even talkedofabolishing this legislation, and this would have implications for tacklingtheeffectivenessoftheseparationofintheUK. Britain modernised its constitutional model with further legislative and institutional reforms such astheConstitutional Reform Act (2005). A key elementofthis Act wasthecreationofa Judicial Appointments Committee that limited executive patronage in appointingthe judiciary, as well as a British Supreme Court, reflecting a more explicitseparationofjudicial.This n ew court has replacedtheLaw Lords asthehighest CourtofAppeal intheUK. TheLaw Lords have in many ways symbolisedtheblurringofthebranchesof government intheUK, with their dual role as interpretersofthelaw on behalfofthejudiciary, but also as law-makers due to their membershipofthe HouseofLords. This Act also significantly reducedthe powers oftheLord Chancellor, formerlythemost powerful position in British politics with a foothold in all government branches. TheLaw Lords and Lord Chancellor were increasingly viewed as nachronisms withintheUKpolitical system and subsequently deemed to be in needofsignificant reform as partoftheprocessofrefreshing Britains implementationoftheseparationoftheory. a In conclusion, it is recognised that certain degree of power and functions between the three organs do overlap, which suggest that although each organ functions within its own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate its own procedure is a clea r example of the existence of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.