GOVT 2306

The Separated Powers

In GOVT 2305 we thoroughly covered the separated powers, as

well as the related concept the checks and balances.

Since we are about to begin looking at the three branches of

government on the state level, and in Texas, it might be useful to

review the concept so we know what these branches are all about and how they relate to each other.

If you recall, in a previous discussion we discussed the effectiveness of

different governing arrangements. The autocratic system – where one person

rules – is the most efficient and effective.

But it can become abusive and arbitrary.

It is – be definition – a tyrannical system.

All power is concentrated in one person or institution.

A system of separated powers is designed to avoid this, but there’s

a necessary consequence.

Ineffeciency.

That’s something to keep in mind as we continue.

The United States was not the first nation based a system of

separated powers, but it was the first modern nation that had one

written into its constitution.

The Roman Republic had a balanced governing system based on a constitutional order built up

over time.

The republic turned to empire when this balanced system was

abolished and all power was granted to the emperor.

In a nutshell, that’s what a system of separated – balanced - powers

is designed to do.

Prevent all power from accumulating in the hands of one

person.

The British governing system also, over the course of time, developed into a system of separated powers.

We cover this evolution in GOVT 2305.

Click here for the British Constitution and

here for its history.

Its not one single document, but a series of documents developed over time, mostly from Magna Carta through the British Bill

of Rights. Some language in these documents ended up in our Constitution

almost word for word.

As with the Roman Constitution, the intention was to ensure that all power would not rest in the hands

of one person or entity.

The 18th Century writer Baron De Montesquieu fine tuned this arrangement by pointing out that the separate institutions that had evolved over time tended to

perform one of three basic functions of government: they

made, implemented or adjudicated the laws.

He argued that governing systems ought to be composed of

institutions separated according to the functions of government.

His writings were as influential as any other author in colonial

America.

Read here for background on separated powers from findlaw.com

. (and of course Wikipedia)

The following quote is from The Spirit of the Laws, one of his more

influential books:

“The administrative powers were the executive, the legislative, and the judicial. These should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two,

either singly or in combination.”

That’s what prevents tyranny. The limitation of the ability of anyone

to legislate, and execute and adjudicate the laws.

Here’s an important quote from James Madison.

“The accumulation of all powers, legislative, executive, and judiciary,

in the same hands, whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly be pronounced

the very definition of tyranny.”

Let’s spend a moment defining these powers.

The legislative power refers to the ability to pass laws for a political

unit.

Legislative power is vested in legislatures.

The executive powers refers to the ability to execute – meaning

implement – the laws.

Executive power is vested in an executive branch which tends to be composed of a chief executive

officer and bureaucracy.

The judicial powers refers to the ability to adjudicate disputes – that

means to reconcile disputes according to established

procedures.

Judicial powers are vested in a court system.

These are the three powers, each vested in one of three branches,

and each is expected to be separated from each other.

Here is language from the Texas Constitution that mandates it.

THE TEXAS CONSTITUTION

ARTICLE 2. THE POWERS OF GOVERNMENT

Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY

ATTACHED TO OTHER DEPARTMENTS.

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which

are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection

of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in

the instances herein expressly permitted.

So the purpose of the separated powers – the reason that we see

the legislative, executive, and judicial powers spelled out in three

separate articles in the Texas Constitution was to prevent

tyranny.

But again this leads to an inefficient system because each

branch can negate what they others can do.

Remember that when you complain that government can’t

get anything done.

The question now is, how can each negate what the other two do?

How these powers were kept separate on the national level was the subject of Federalist 51. The argument applies here as well.

No external force can be trusted to do so since that force itself can

become tyrannical.

So the trick is in structuring the powers of each branch so that the people in each have the power to

resist efforts on the part of the others to intrude on their turf.

This leads to the system of checks and balances.

Try to memorize this point:

The purpose of the checks and balances is to preserve the

separated powers.

Though the specific design of the three branches of Texas’

government are different from those on the national level (we will

cover these soon enough) the basic logic underlying the

separated powers on the national level applies to separation powers

on the state level.

This was the subject of Federalist 51.

In it, Madison tells us that we can expect that the people that will occupy offices of power will be

naturally ambitious.

It makes sense. Unambitious people do not get to high public office.

An ambitious person that reaches the pinnacle in one position, is

unlikely to be satisfied with that.

They’ll want more. There needs to be some mechanism for ensuring

that their ambition is checked.

Madison suggested that that mechanism should be the

ambitious people that occupy positions of power in the other

branches.

He famously stated that “ambition must counteract ambition.”

That is the heart of the checks and balances.

And it not only guarantees conflict, but it tells us that this conflict is beneficial. It tells us that each branch is being kept in place.

But again, it can lead to stalemate and gridlock, so there’s a negative

aspect to this.

We will cover that in a later section when we look at political parties and interest

groups. Its suggested that these institutions can act to tie the disparate

institutions together in order to actually pass policies. But more on that later.

Very quickly, let’s run through key checks and balances so we can

understand their role in the overall system. We will spend more time

on them later.

The legislative branches power to pass laws is checked by the ability

of the executive branch to veto laws, and by the judiciary’s power of judicial review – it can over turn laws it judges to violate the Texas

Constitution.

The executive branch’s power to implement the laws can be

checked by the ability of the legislature to oversee the

executive branch and pass laws altering how it implements laws. The Judiciary’s power of judicial review also applies to executive

actions.

The Judiciary’s power over adjudication is checked by the

legislature’s ability to pass laws impacting their jurisdiction and by

the ability of the governor to appoint people to open judicial

seats – these are then subject to elections.

This is just a simple overview however. We will dig further into each branch in

the following sections.

Its important to address why we have these three branches, and why this

particular relationship exists between them before doing so.