Horizontal Separation of Powers
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James Madison recognized that a horizontal separation of powers was absolutely essential to a free society. “The holding of all powers—legislative, executive, and judiciary – in the same hands, whether by one person, a few, or many, and whether hereditary, self-appointed or elective, is the very definition of tyranny.”[i]
Today the separation of the Legislative, Executive, and Judiciary powers is recognized and accepted as political common sense.
The founders placed one other horizontal separation that is not as well recognized for its genius. The founders knew that being governed by elected representatives was no guarantee that the government would not become oppressive; however, they considered the Legislative as the most powerful branch of the three and were familiar with legislative tyranny from their own personal experience and their study of political history. Madison[ii] expressed this view in these words “Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that auxiliary precautions are necessary.”
One of these “auxiliary precautions” was to split the legislative into two parts. Divide it against itself as an important check on its power as the most powerful of the three branches of government and as a check on the legislative ability to encroach on the executive and/or judicial branch.
In Madison’s own words: “In republican government, the legislative authority necessarily predominates. The remedy for this is to divide the legislature into different houses and make them by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will allow. It may even be necessary to guard against encroachments with even further precautions.”[iii]
Vertical Separation of Powers
A vertical separation of powers is also essential to maintaining government in the balanced center between tyranny and anarchy.
Madison referred to America as a “compound republic” and described how vertical separation of powers would work with horizontal separation of powers to safeguard the liberty of the people. ”…the powers surrendered by the people are first divided between to distinct governments, state and federal. Then the portion allotted to each is subdivided among distinct and separate branches. Hence the rights of the people are doubly protected. The different governments [state & federal], will control each other, at the same time each will be controlled by itself.”[iv]
Vertical separation of powers between the federal and state governments is written into the Constitution. Article 1 section 9 lists prohibitions on congress to prevent encroachment on the states. Article 1 section 10 lists prohibitions on the states to prevent them from encroaching on the federal government.
The Principle of vertical separation of powers is in the Bill of Rights. Concern that the federal government might violate this principle and chip away at the rights that inherently belonged to the states or the people prompted the ratification or the ninth and tenth amendments. Amendment 9 states that the people’s rights are not limited to those specifically mentioned in the constitution. It makes clear that the people retain all their rights even though they may not be specifically mentioned in the Bill of Rights. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Amendment 10 places a barrier between the powers delegated to the federal government by the people and the powers reserved for state or local jurisdictions. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
During the debates over ratification of the Constitution those opposed to ratification sought to paint the proposed federal government as an enemy of the state governments that would try to usurp their authority. Madison addressed their objection in these words. ”The federal and state governments are simply agents and trustees of the people with different powers designed for different purposes…the State governments have little to fear because federal powers are only applicable within a certain sphere where federal power can be advantageously administered.”[v]
Madison makes clear in this next quote that the federal government’s powers are limited to those specifically enumerated in the Constitution. “The Constitution delegates a few defined powers to the federal government. The remaining state powers are numerous and indefinite.
Federal powers will be principally exercised on external objects, like war, peace, negotiation and foreign commerce. Taxation will be the primary federal power over foreign commerce.
The State powers extend to everything that, in the ordinary course of affairs, concerns the lives, liberties, property of the people, internal order, improvement, and prosperity of the state.”[vi]
Does the phrase “general welfare “found in Article 1 section 8 of the Constitution “…amount to an unlimited license to exercise any and every power that may be alleged to be necessary for the general welfare?”[vii]
That is what some of the critics of the Constitution charged during the ratification debates. It is also what liberals claim today as they try to sell voters on “Federal program’s” that require an unconstitutional expansion of power for their implementation.
Madison scolded the critics making this charge for “stooping to such a misconstruction.”[viii] He went on to say,”Why would specific powers be enumerated…? Nothing is more natural than to first use a general phrase and then to explain and qualify it by a recital of particulars.”[ix] Again it is clear that the founder’s intent was that the federal government’s jurisdiction be limited to enumerated powers only.
It is important to remember that when government moves left of the balanced center on the line between tyranny and anarchy every increase in the size of government results in a decrease in the amount of your freedom. How do you tell if government is getting bigger? Your taxes keep going up.
The vertical separation of powers is not just between the State and federal government. This principle is meant to operate through all the levels of government all the way down to the most local level. Thomas Jefferson explained, “The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to [perform best]. Let the national government be entrusted with the defense of the nation, and it’s foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward [township] direct the interest within itself. It is by dividing and subdividing these republics, from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body….”[x]
[i] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #47) p 197
[ii] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #51) p 211,212
[iii] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #51) p 212
[iv] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #51) p 212
[v] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #46) p 192,193
[vi] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #45) p 190,191
[vii] Edited by Mary E. Webster, The Federalist Papers: In Modern Language Indexed for Today’s Political Issues (Merril Press / Bellevue, Washington, 1999) (Federalist #41) p 169
[x] Bergh, Writings of Thomas Jefferson, 14:421, quoted in W. Cleon Skousen, The Five Thousand Year Leap (National Center for Constitutional Studies / Publisher, Washington D.C., 1981) p 238