Separation of powers: tools of resistance
Context from history and the Constitution to the flurry of executive orders.
The founding fathers tried their best to plan for times like these.
They built safeguards into the U.S. Constitution to protect us from what they considered worst case scenarios. They couldn’t completely predict the future but they were well read, smart and knowledgeable about human nature.
And while the United States was formed 250 years ago, that wasn’t exactly Ancient Rome. We know what the founders were thinking because they left their notes behind in the Federalist Papers. The series of essays published by James Madison, Alexander Hamilton, and John Jay in 1788 in New York newspapers were designed to convince the people to vote to adopt the Constitution.
In Federalist Paper No. 51, Madison explains why a separation of powers was baked into the Constitution. Basically, they didn’t trust the current or future humans who would lead this country. So they created three branches of government – legislative, executive and judicial – to have different powers and to keep an eye on each other.
“If men were angels, no government would be necessary,” Madison wrote. We’re the opposite of angels – or the white men who were put in charge by the Constitution are – ambitious and greedy. The checks and balances in the three branches of government make sense. For example, Congress passes laws but the president has veto power over them. The president appoints his cabinet but Congress must approve those choices. The Supreme Court both interprets the Constitution and judges whether laws and other action by the Congress and the executive are allowed by that document. And Congress can pass laws that effectively write over court decisions.
One check on the federal government that isn’t explicitly mentioned in Article 1 of the Constitution is the power of state governments to challenge the federal government in the courts — like many did last week over the birthright citizenship executive order or this week over the halt in federal funding. Another approach is the way state lawmakers and governors establish their own rules on things like the legalization of marijuana, gay marriage and abortion.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself,” Madison explained in Federalist Paper No. 51.
We could have a long and raucous debate about how well these checks and balances are working right now, but give me a chance to explain the how and why first and we can debate in the comments. And remember: If you don’t like the way Congress and the president are doing their jobs, you have the power to do something about that. By voting.
We have federal elections every two years, when control of Congress regularly changes hands. Staying home and not voting means – at least to me – that you are OK with other people making those decisions for you. Some days I wish either voting was mandatory like it is in Australia, or that we all could tell who didn’t vote so I could just cut off their complaints about government actions. (Further aside: The only premium I’ve considered for this newsletter is an “I vote” button or maybe a tattoo for hardcore subscribers.)
Federalist Paper No. 51 also explains how the government was set up to protect minority interests, so that the majority can’t stomp on the rights of the minority. I wonder how heated the debates were while these ideas were being discussed by Madison and friends. And I can’t even imagine the founders debating slavery or women’s rights. Women, apparently, weren’t even part of the discussion. But women of the time had something to say about the Constitution.
“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part,” Madison wrote. Take this out of its historical context and people on both sides of the aisle would find things to disagree with. Maybe the people asking online for a book to read about mounting a resistance should just read the Federalist Papers.
The language is a bit dense but the meaning is clear. The framers knew the dangers of giving one man, one party or one branch of government too much power. They feared monarchy, which they had left behind and fought a war to escape. I recommend you spend a little time reading the original language in Federalist Paper No. 51. It’s only three-pages long. You’ll end today smarter than yesterday. I know I did.
Years ago in public school I was taught about the separation of powers in American Government class, but I don’t remember being taught why this system was established. And that’s kind of funny because I was living through one of the greatest “modern” examples of how this system works: the Watergate scandal that included an impeachment trial and ended with President Richard Nixon’s resignation.
My family watched this drama unfold on TV in real time. And my generation of journalists almost all chose the profession because we wanted to be like Bob Woodward and Carl Bernstein of The Washington Post and hold our government institutions accountable.
Those times also made me have more faith in the separation of powers than I probably should. But it’s relatively easy to be optimistic about a political system that has survived 250 years.
Today’s smart political analysts who have watched Republican Party maneuvers over the past decade – aimed at overturning Roe v. Wade, for example – would respond to my optimism by saying it’s possible to game the system despite the founding father’s best efforts. My answer: Only when the voters allow that to happen.
So, will the separation of powers protect us for the next two years as we wait for the next election to clarify things. That depends, in part, on voters and how much you’re willing to push your lawmakers to do what you want. Another thing to keep in mind: Most federal judges were appointed by presidents other than Donald Trump and most judges with a conservative point of view believe more in the Constitution than in any elected officials. The states also have plenty of power to combat the federal government.
Next issue: A handbook for lobbying your government from home.
Go deeper: More to read
Earn a DIY master’s degree in U.S. government on this website from the Bill of Rights Institute:
https://billofrightsinstitute.org/resources-library
Start reading the Federalist Papers:
https://billofrightsinstitute.org/collections/federalist-papers
The National Conference of State Legislatures talks about separation of powers:
https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview
An interesting student curriculum about separation of powers, which was created by the federal courts:
Other Civics for Adults posts
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Since George Washington, every American president has issued executive orders, except for one, William Henry Harrison. Some of our earliest presidents only issued one, but most issued dozens or hundreds on a wide variety of subjects.
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I am the granddaughter of immigrants. Just like nearly every other citizen of the United States, my ancestors were not born in this country.
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When my daughter was in second grade, she ran for student council. She made some posters and wrote a speech to give to her class, explaining why they should pick her to represent them. She came home from school practically in tears on the day of the election.
Grateful for our governor and attorney general with a great track record of these challenges.