Separation of Powers: A “Dogmatic Maxim” in the Constitution
By: Michael Boldin
James Madison considered the separation of powers so important he not only called it a “dogmatic maxim,” he expressly included it as part of his proposed amendments for the Bill of Rights.
Representing the twin-pillars making up the foundation of the Constitution, Madison’s proposal would’ve created a new Article VII – putting separation of powers and what became the 10th Amendment – together in the body of the text.
Much of the debate over ratification revolved around a question over what qualified as a separation of powers. The question was not whether the Constitution would embody the separation of powers to at least some degree, since few denied this at all, but rather, whether the separation was adequate to prevent consolidation – centralization of power – and tyranny.
Aristotle may have been first to mention the idea of a “mixed government” or hybrid government in his work Politics, but the philosophical foundations most influential on the Founders came from the British system.
In 1648, Clement Walker thought the remedy for tyranny lay in a separation of “the Legislative power,” and “the Judicative power.” John Locke’s 2nd Treatise in 1698 distinguished between legislative, executive, and federative powers.
But nothing had more impact on the Founders’ thinking than “the celebrated Montesquieu,” and the “tripartite system” from The Spirit of the Laws (1748).
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
Here, Montesquieu was quite explicit in his argument that each Power should only exercise its own functions.
These principles were carried forward to the Revolution and the Constitution for the United States.
In the Virginia Constitution of 1776, George Mason started the text with:
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; except that the Justices of the County Courts shall be eligible to either House of Assembly.
John Adams included the following in the Massachusetts Constitution of 1780:
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.
While Adams was certainly influenced by Montesquieu, he was likely motivated by personal experience as well, where he saw powerful people like Thomas Hutchinson pretty much just collect high offices in various branches of government.
Arguing in favor of ratification of the Constitution in New York, James Madison emphasized the Separation of Powers in Federalist No. 47:
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.
During the ratification debates, some critics – from both sides – charged that upon close inspection, the separation of powers in the Constitution were not as Montesquieu advocated, and would tend toward an accumulation of power in one branch or another over time.
Virginia’s Richard Henry Lee warned, “The most essential danger from the present System arises from its tendency to a Consolidated government.”
In Massachusetts, Fisher Ames said, “Too much provision cannot be made against a consolidation.”
Patrick Henry repeatedly warned that the proposed Constitution would create a consolidated government – leading to “a destruction of our liberties.”
John Adams wrote, “I am much Mortified at the Mixture of Legislative and Executive Powers in the Senate, and wish for Some other Amendments.”
Some of the opposition took the position that the separation must be complete, and any “mixing” of the powers would lead to corruption and tyranny. For example, in his 2nd paper, Centinel wrote:
This mixture of the legislative and executive moreover highly tends to corruption. The chief improvement in government, in modern times, has been the compleat separation of the great distinctions of power
But Madison and others took the position that Montesquieu did not insist on a complete and absolute separation. For example, although the executive is a separate branch, it also participates in a legislative function through the veto. Madison described it this way in Federalist No. 47:
he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.
But, for many, this explanation just wasn’t enough to get their support. As Phoenix Dalto notes at the Journal of the American Revolution, a number of states included a separation of powers amendment along with their ratification:
Of the nine states that proposed amendments alongside their ratifications of the Constitution from 1787 to 1790, four (Pennsylvania, Virginia, Rhode Island, North Carolina) included an amendment explicitly stating that the three branches of the federal government must operate and exercise their individual powers separately and distinctly. A similar amendment was debated in New York and supported by a minority of delegates. These state conventions held the concept of the separation of powers in high regard and believed its inclusion in the Constitution as more than an implicit structural framework to be a necessity.
After ratification, when Madison got to work on drafting his Bill of Rights, he included the separation of powers as his 16th Amendment:
XVI. The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial, nor the Executive the powers vest in the Legislative or Judicial; nor the Judicial the powers vest in the Legislative or Executive.
Madison’s amendments were drafted not to be appended to the Constitution, but rather, to be inserted into the body of the text. His separation of powers clause was to be included with text that was eventually ratified as the 10th Amendment. Dalto writes that “this new Article VII would have explicitly defined the two core structural frameworks of the United States government: the separation of powers and a system of federalism.”
In a June 8, 1789 speech supporting his proposed amendments, Madison presented it like this:
That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:
The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.
The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.
Madison described these as “dogmatic maxims with respect to the construction of the government.”
After sailing through the House without a single word being altered and very little debate, Madison’s 16th was eventually rejected by the Senate, and never sent to the states for further consideration.
Since debates in the first Senate were not published, we don’t actually know why, but Dalton has put together an impressive list of four reasons “explained through a careful synthesis of political arguments and conversations going on elsewhere at the time.”