Separation of powers

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Separation of powers is a model for governance where government responsibilities are divvied up. The point is to create a system of checks and balances with separate and independent powers and areas of responsibility so that the powers of one part are not in conflict with the powers associated with the other parts. The model tends to be most associated with democracies and republics. Separation of powers falls under the more general philosophy of seeking Balance of Power, which is not to be confused with Power Balance.

Origin[edit]

Separation of powers is at least as old as the democratic city-states of Ancient Greece. Aristotle mentioned a very similar concept in his Politics treatise.

The tripartite systemWikipedia originated in the writings of Baron de Montesquieu in The Spirit of the Laws where he urged for a constitutional government with three separate branches of government: The executive, the legislative, and the judiciary. Philosophers such as John Locke advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it.

Terms[edit]

As a topic on the intersection of law and philosophy, most of the terms being bandied about have very precise definitions that will be carelessly glossed over.

Branch: One division of a government split by separation of powers, usually referring the central-government splits rather than state/central splits. There can be many types, depending on the system's flavor.

  • executive branchWikipedia - deals with daily administration of the state and enforces the law.
  • legislative branchWikipedia - enacts, amends, and repeals public policies. Usually called "parliaments" and "congresses."
  • judicial branchWikipedia - interprets and applies the law and resolves disputes
  • auditory branchWikipedia - audits the rest of the government
  • electoral branchWikipedia - oversees the implementation of election procedures
  • prosecutory branchWikipedia - executive responsibility for law enforcement, public prosecutions, or even ministerial responsibility for legal affairs

Checks and Balances: Checks and balances allow for a system-based regulation that allows one branch to limit another. In the context of US government, Montesquieu is credited for suggesting that a system of "checks and balances" is needed to prevent one branch from gathering too much power. Examples of Checks and Balances in the US include:

  • Executive: The President has the power to veto any legislation that comes to their desk, which can only be overturned with a considerable (2/3) majority vote in both houses of congress. The President also has the power to nominate federal judges, including the justices of the Supreme Court, with the approval of the Senate. The Vice President can also cast a single vote in the Senate in the case of a tie.
  • Legislative: As mentioned, Congress holds the power to overturn a Presidential veto, as well as approve or deny the federal judges and other federal officers (e.g., the Secretary of State, Secretary of Defense, etc.) the President nominates. The Congress also holds the power to impeach and remove federal judges, federal officers, and even the President himself, in cases of egregious crimes, treason, or dereliction of duty. They also have the power to amend the Constitution with the approval of the states.[note 1]
  • Judicial: Federal judges are appointed for life, meaning they don't have to please a massive board of bureaucrats or legislators in order to keep their job after appointment. Though not explicitly mentioned in the Constitution, the Supreme Court has the power to strike down actions by either of the other branches of government as unconstitutional.

Tripartite division of powers: Montesquieu's separation of powers formulation where a state is split into three branches: a legislature does lawmaking, an executive does law enforcement, and a judiciary does law interpretation. A lot of western governments are considered tripartite. Contrasts with bipartite division of powers, or additionally multipartite systems.

Mixed Government: a system of government that divided political power between democracy and aristocracy, favored by John Calvin.

Federalism: a separation of powers into a central government and states

Implementations[edit]

United States of America[edit]

Prior to becoming the Unites States, the states had a variety of ways of running things. Plymouth Colony ran on a bipartite system.

Montesquieu's writings considerably influenced the opinions of the framers of the United States Constitution, and so the US wound up with a tripartite system: executive, legislative, and judiciary. Federalism, a separation of powers into a central government and states, rounds out the rest of the modern US system.

The balance of power between the branches and between federal and state is far from static, the American Civil War being one of the most obvious power struggles between the federal and state and legislative and executive branch. In the 20th century, the Supreme Court issued its first smackdown on a congressional delegation for violating the doctrine of separation of powers.[1] Franklin Delano Roosevelt attempted and failed to add more president-selected seats to the Supreme Court after facing a series of unfavorable Supreme Court decisions.[2]

In the 21st century, the GOP's 2015 letter to Iran reminding them how the US government works, and bypassing president Obama to invite Benjamin Netanyahu are another example of power jockeying between branches controlled by opposite parties.

Certain political scientists believe that the tripartite system is key to American Exceptionalism.

Journalism[edit]

The press is often considered something of an unofficial branch (e.g. fourth estate) which checks the powers of the government. With that in mind, many countries have taken measures to ensure freedom of the press, while others muzzle it, fearing its potential to create unrest.

Modern opposition to separation of powers[edit]

China[edit]

Mainland China's authoritarian government strongly opposes the concepts of separation of powers or checks and balances, which they call constitutionalism in Document 9[3]. This causes friction with Hong Kong, which was raised British and thus has a tripartite system and relatively free-roaming press.

Notes[edit]

  1. In theory, the President can't do anything without citing a specific law or treaty Congress has passed and had been signed into law, although the popularity of Executive orders has expanded the POTUS's power considerably.

References[edit]

  1. Panama Refining v. Ryan, Schechter Poultry Corp. v. United States
  2. Judicial Procedures Reform Bill of 1937
  3. Document 9: A ChinaFile Translation
    How Much Is a Hardline Party Directive Shaping China’s Current Political Climate?
    The Editors
    November 8, 2013
    Retrieved April 12, 2015
    http://www.chinafile.com/document-9-chinafile-translation

    Noteworthy Problems Related to the Current State of the Ideological Sphere
    While fully approving of the ideological mainstream, we must also clearly see the ideological situation as a complicated, intense struggle. Currently, the following false ideological trends, positions, and activities all deserve note:

    1. Promoting Western Constitutional Democracy: An attempt to undermine the current leadership and the socialism with Chinese characteristics system of governance.

    Western Constitutional Democracy has distinct political properties and aims. Among these are the separation of powers, the multi-party system, general elections, independent judiciaries, nationalized armies, and other characteristics. These are the capitalist class’ concepts of a nation, political model, and system design. The concept of constitutional democracy originated a long time ago, and recently the idea has been hyped ever more frequently.

    This is mainly expressed the following ways: In commemorating the 30th anniversary of the enactment of the [Chinese] Constitution, [some people] hold up the banners of “defending the constitution” and “rule of law.” They attack the Party’s leaders for placing themselves above the constitution, saying China “has a constitution but no constitutional government.” Some people still use the phrase “constitutional dream” to distort the Chinese dream of the great rejuvenation of the Chinese nation, saying things like “constitutional democracy is the only way out” and “China should catch up with the rest of the world’s trend toward constitutional governance.” The point of publicly proclaiming Western constitutional democracy’s key points is to oppose the party’s leadership and implementation of its constitution and laws. Their goal is to use Western constitutional democracy to undermine the Party’s leadership, abolish the People’s Democracy, negate our country’s constitution as well as our established system and principles, and bring about a change of allegiance by bringing Western political systems to China.