Separation of Powers

The division of state and federal government into three independent branches.
The first three articles of the U.S. Constitution call for the powers of the federal government to be divided
among threeseparate branches: the legislative, the executive, and the judiciary branch. Under the separat
ion of powers, each branch isindependent, has a separate function, and may not usurp the functions of an
other branch. However, the branches areinterrelated. They cooperate with one another and also prevent
one another from attempting to assume too much power.This relationship is described as one of checks a
nd balances, where the functions of one branch serve to contain andmodify the power of another. Throug
h this elaborate system of safeguards, the Framers of the Constitution sought to protectthe nation against
tyranny.
Under the separation of powers, each branch of government has a specific function. The legislative branc
hthe Congressmakes the laws. The executive branchthe president
implements the laws. The judiciarythe court system
interpretsthe laws and decides legal controversies. The system of federal taxation provides a good examp
le of each branch at work.Congress passes legislation regarding taxes. The president is responsible for a
ppointing a director of the Internal Revenue
Service to carry out the law through the collection of taxes. The courts rule on cases concerning the appli
cation of the taxlaws.
Under the system of checks and balances, each branch acts as a restraint on the powers of the other two
. The presidentcan either sign the legislation of Congress, making it law, or Veto it. The Congress, throug
h the Senate, has the power ofadvise and consent on presidential appointments and can therefore reject
an appointee. The courts, given the sole power tointerpret the Constitution and the laws, can uphold or ov
erturn acts of the legislature or rule on actions by the president.Most judges are appointed, and therefore
Congress and the president can affect the judiciary. Thus at no time does allauthority rest with a single br
anch of government. Instead, power is measured, apportioned, and restrained among the threegovernme
nt branches. The states also follow the three-
part model of government, through state governors, statelegislatures, and the state court systems.
Our system of government in the United States is largely credited to James
Madison and is sometimes called theMadisonian model. Madison set forth his belief in the need for balan
ced government power in The Federalist, No. 51.However, the concept of separation of powers did not ori
ginate with Madison. It is often attributed to the French philosopherBARON MONTESQUIEU, who described it
in 1748. At the Constitutional Convention of 1787, Madison played a leading role inpersuading the majorit
y of the Framers to incorporate the concept into the Constitution.

Cross-references
Congress of the United States; Constitution of the United States; Judicial Review; President of the
United States; Presidential Powers; Supreme Court of the United States.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

separation of powers
the doctrine, derived from Locke and Montesquieu, that power should not beconcentrated but separated.
The traditional separation is between the legislature, the executive and the judiciary. Acomplete separatio
n is unwieldy. In the UK it is nothing like complete, with the Lord Chancellor, the highest judicial officer,an
d the Lord Advocate, the highest judicial officer in Scotland, sitting in Parliament. Indeed, the Lord Chanc
ellor sits inCabinet. Members of Parliament sit in the government, and the government in the sense of ap
pointed members of thegovernment extends usually to a very large number of Members of Parliament. In
the USA, the theory was carried to itsmost practically perfect. Executive power lies in the President, legisl
ative power in the Congress and judicial power is in theSupreme Court. However, the need to function an
d coordinate is achieved by a series of checks and balances that alsoserve to prevent either of the three
organs gaining the ascendancy. The Supreme Court can strike down legislation, but itsmembers can be i
mpeached or its membership extended with presidential appointments while these appointmentsthemselv
es may not be confirmed by the Senate.
A similar situation can be seen in the EUROPEAN
UNION, where the Council, the Commission and the Parliament arelinked in a series of relationships that
are even more sophisticated than the system in the USA because they have flexibilitybuilt into their struct
ure, for example, to allow the Parliament to acquire more and more power as it becomes ever morerepres
entative of the peoples of Europe.