Info Brief: Separation of Powers

Learn about the constitutional principle of separation of powers.

Key Term

Separation of powers is the phrase used to describe the Constitution’s system of dividing political power between the legislative, executive, and judicial branches of the national government.

Big Idea

When crafting a new Constitution, the Framers were concerned about the threats posed by a powerful new national government. To guard against potential abuses of power, the Founders divided political power at the national level between three branches of government. This is the separation of powers.

Let’s take a deeper look at the separation of powers.

Separation of Powers

Through the separation of powers, the Constitution distributes political power between three branches of government at the national level. In particular, the Constitution lays out the three branches of government in Articles I through III.

The legislative branch—Congress—makes the laws. (We find this branch in Article I.)
The executive branch—led by a single President—enforces the laws. (We find this branch in Article II.)
The judicial branch—headed by a single Supreme Court—interprets the laws. (We find this branch in Article III.)

At the same time, through its system of checks and balances, the Constitution grants each branch of government the power to check abuses by the other branches.

How does this system of checks and balances work? Take a few examples.

Congress is given the power to make our nation’s laws. But the President is given the power to veto any law passed by Congress and federal judges are given the power to declare any law unconstitutional. (This is known as the power of judicial review.)
Supreme Court justices have the power to interpret laws, and they enjoy lifetime tenure to insulate them from political pressure. However, they only enjoy this life tenure under good behavior. If a Supreme Court justice is guilty of “Treason, Bribery, or other high Crimes and Misdemeanors,” Congress has the power to impeach and remove a justice. (Justice Samuel Chase was impeached, but not removed, in 1805.)
The President has the power to negotiate treaties with foreign governments. However, the treaties are subject to approval by the Senate.

Children of the Enlightenment

So, where did the Founders get the idea for the separation of powers?

Remember that when crafting the U.S. Constitution, the Founders were rarely writing on a blank slate—instead, they learned from the writings of centuries of political thinkers before them. The Founders were, in many ways, children of the Enlightenment.

The Framers borrowed key principles like the separation of powers from Enlightenment-era political theorists—for instance, from key writers like Montesquieu (and his Spirit of the Laws) and John Locke (and his Second Treatise on Government). In turn, the Framers drew on the ideas of these key thinkers to come up with their own system in which the branches were meant to compete with one another to ensure that no one branch became too powerful.

However, the Founders also relied on another powerful teacher: their own experiences as constitution-creators.

Lessons from the Early State Constitutions

By the time of the Constitutional Convention, many of the Founders had already gained much experience in creating political systems of their own. In the period’s state constitutions and in the Articles of Confederation, the Founders started to learn what types of constitutional structures worked—and even more importantly, what types didn’t work.

Under early state constitutions, the balance of power between the branches of government was skewed. The executive branch was usually quite weak, and the state legislatures (and especially the lower houses) had a ton of power. While many state constitutions expressed explicit support for separation of powers as a matter of principle, they often did a poor job of realizing that principle in practice.

Drawing from their experiences with constitutions that granted too much power to the state legislature, the Founders focused on bolstering the powers of the executive and judicial branches when they crafted the U.S. Constitution. For many of the delegates, one state constitution stood out as a particularly helpful model: the Massachusetts Constitution of 1780, authored primarily by John Adams.

Adams laid out his own views about how to craft a well-balanced constitution in his Thoughts on Government (1776). There, Adams emphasized the importance of creating competing power centers within the government, featuring: an executive, a bicameral legislature, and an independent judiciary. For Adams, the existing state constitutions had granted too much power to the legislative branch and too little to the executive and judicial branches. In his view, constitution-writers had to increase the power of the executive and judicial branches, so that they could provide a powerful check on the excesses of the legislative branch.

For example, here’s Adams’s account of the importance of any independent judiciary:

“The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The Judges therefore should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention. . . . To those ends they should hold estates for life in their offices, or in other words their commissions should be during good behaviour.”

Here, Adams argues that an independent judiciary is essential to protecting liberty, administering impartial justice, and checking abuses by the other branches of government.

In the end, even as John Adams didn’t attend the Constitutional Convention, Adams’s ideas and his work on the Massachusetts Constitution proved influential to the Framers, especially their approach to the separation of powers.

The Founders’ Theory of the Separation of Powers

Perhaps the best way to understand the theory driving the Constitution’s system of separation of powers is through one of the most famous essays in American history, James Madison’s Federalist No. 51. This essay was part of The Federalist Papers. Madison published Federalist No. 51 on February 8, 1788. He titled it: “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.”

In this powerful essay, Madison explained how the Constitution’s structure checked the powers of the elected branches and protected against possible abuses by political elites. For Madison, the solution to the challenges of faction and the threat of a tyrannical government was a combination of both the separation of powers and checks and balances. With the separation of powers, the Framers divided the powers of the national government into the three separate branches. The goal was to prevent any single branch of government from becoming too powerful. At the same time, each branch of government was also given the power to check the other two branches. Again, this is the key principle of checks and balances.

Madison explained this system in one of the most famous passages in American history: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

But as Madison and his fellow Framers knew, men were not angels.

For Madison, ambition must be made to counteract ambition because the Constitution assumes that human nature is imperfect and that all political elites (and factions) will seek greater political power. As a result, the best way to control the national government was to harness the political ambitions of each branch of government and use them to check the other branches.

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