separation of powers and checks and balances essay

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Checks and Balances

By: History.com Editors

Updated: July 27, 2023 | Original: November 17, 2017

The system of checks and balances in government was developed to ensure that no one branch of government would become too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches of the U.S. government—legislative, executive and judicial—and includes various limits and controls on the powers of each branch.

Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention , but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome , the Greek statesman and historian Polybius identified it as a “mixed” regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke  and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch , the executive branch and the judicial branch .

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison  wrote in the Federalist Papers , of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

• The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.
• Congress has the power of the purse, as it controls the money used to fund any executive actions.
• The president nominates federal officials, but the Senate confirms those nominations.
• Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.
• In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts
• By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the  House of Representatives  and the  Senate , or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).
• Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes—and congressional overrides of those vetoes—tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions. 

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for in the U.S. Constitution, but rather implied by Article II, which states that the president “shall take Care that the Laws be faithfully executed.” Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury. 

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR’s New Deal .

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt’s proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon , who called it an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military. 

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations “police action.” Presidents Kennedy , Johnson and Nixon each escalated the undeclared conflict during the Vietnam War .

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act’s components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal , the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

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Checks and Balances, The Oxford Guide to the United States Government . Baron de Montesquieu, Stanford Encyclopedia of Philosophy . FDR’s Losing Battle to Pack the Supreme Court, NPR.org . State of Emergency, New York Times , Pacific Standard , CNN . 

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US government and civics

Course: us government and civics   >   unit 1, separation of powers and checks and balances.

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Video transcript

Separation of Powers: A System of Checks and Balances

Because, 'All Men Having Power Ought be Mistrusted'

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The governmental concept of the separation of powers was incorporated into the U.S. Constitution to ensure that no single person or branch of the government could ever become too powerful. It is enforced through a series of checks and balances.

Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.

History of the Separation of Powers

Founding Fathers like James Madison knew all too well—from hard experience—the dangers of unchecked power in government. As Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Therefore, Madison and his fellow framers believed in creating a government administered both over humans and by humans: “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The concept of separation of powers, or “trias politics,” dates to 18th century France, when social and political philosopher Montesquieu published his famed "The Spirit of the Laws." Considered one of the greatest works in the history of political theory and jurisprudence, "The Spirit of the Laws" is believed to have inspired both the United States Constitution and France's Declaration of the Rights of the Man and of the Citizen.

The model of government conceived by Montesquieu had divided the political authority of the state into executive, legislative, and judicial powers. He asserted that ensuring that the three powers operate separately and independently was the key to liberty.

In American government, these three branches, along with their powers, are:

• The legislative branch , which enacts the nation’s laws
• The executive branch , which implements and enforces the laws enacted by the legislative branch
• The judicial branch , which interprets the laws in reference to the Constitution and applies its interpretations to legal controversies involving the laws

So well-accepted is the concept of the separation of powers that the constitutions of 40 U.S. states specify that their own governments be divided into similarly empowered legislative, executive, and judicial branches. 

Three Branches, Separate But Equal

In the provision of the three branches of governmental power into the Constitution, the framers built their vision of a stable federal government, assured by a system of separated powers with checks and balances.

As Madison wrote in No. 51 of the Federalist Papers , published in 1788, “The accumulation of all powers, legislative, executive, and judicial 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.”

In both theory and practice, the power of each branch of the American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote from both houses .

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

The following are the specific powers of each branch that demonstrate the way they check and balance the others:

Executive Branch Checks and Balances the Legislative Branch

• President has the power to veto laws passed by Congress.
• Can propose new laws to Congress
• Submits the Federal Budget to the House of Representatives
• Appoints federal officials, who carry out and enforce laws

Executive Branch Checks and Balances the Judicial Branch

• Nominates judges to the Supreme Court
• Nominates judges to the federal court system
• President has the power to pardon or grant amnesty to persons convicted of crimes.

Legislative Branch Checks and Balances the Executive Branch

• Congress can override presidential vetoes with a two-thirds vote from both chambers.
• Senate can reject proposed treaties with a two-thirds vote.
• Senate can reject presidential nominations of federal officials or judges.
• Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury).

Legislative Branch Checks and Balances the Judicial Branch

• Congress can create lower courts.
• Senate can reject nominees to the federal courts and Supreme Court.
• Congress can amend the Constitution to overturn decisions of the Supreme Court.
• Congress can impeach judges of the lower federal courts.

Judicial Branch Checks and Balances the Executive Branch

• Supreme Court can use the power of judicial review to rule laws unconstitutional.

Judicial Branch Checks and Balances the Legislative Branch

• Supreme Court can use the power of judicial review to rule presidential actions unconstitutional.
• Supreme Court can use the power of judicial review to rule treaties unconstitutional.

But Are the Branches Truly Equal?

Over the years, the executive branch has—often controversially—attempted to expand its authority over the legislative and judicial branches.

After the Civil War, the executive branch sought to expand the scope of the constitutional powers granted to the president as Commander in Chief of a standing army. Other more recent examples of largely unchecked executive branch powers include:

• The power to issue executive orders
• The power to declare local and national emergencies
• The power to grant and revoke security classifications
• The power grant presidential pardons for federal crimes
• The power to issue presidential bill signing statements
• The power to withhold information from Congress through executive privilege

Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. Though they are technically correct, it is how the Founding Fathers intended the government to operate.

Our system of the separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government. Specifically, it does so in that the legislative (lawmaking) branch, as the most powerful, is also the most restrained.

As James Madison put it in Federalist No. 48 , “The legislative derives superiority…[i]ts constitutional powers [are] more extensive, and less susceptible to precise limits…[it] is not possible to give each [branch] an equal [number of checks on the other branches].”

Today, the constitutions of forty U.S. states specify that the state government is divided into three branches: legislative, executive, and judicial. Illustrating this approach and its inherent separation of powers, the California constitution states, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

While separation of powers is key to the workings of the American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap, being too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

• Basic Structure of the US Government
• Overview of United States Government and Politics
• The Three Branches of US Government
• The U.S. Constitution
• What Is Judicial Review?
• Constitutional Law: Definition and Function
• The Powers of Congress
• Government 101: The United States Federal Government
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• Marbury v. Madison
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The Separation of Powers and Checks and Balances Essay

The separation of powers and checks and balances is a system that was created in America by the founding fathers in the constitution of the United States. The separation of power plays an important role of keeping the three branches which are legislative, executive, and judicial in the government systems equal to one another and that neither branches becomes too powerful. Each branch has its very own power and duties to serve to the people and government. All three branches play a significant role in checks and balances and separation of powers , in our government and rely on each other to make sure that all of the power is equally distributed. One out of the three branches is the Legislative Branch which has the power to declare war, …show more content…

The president also has the power of assigning the federal judges, and when to call Congress into session. Likewise, the president has the power to either sign or veto a piece of legislation from Congress. The Judicial branch is in charge of reviewing decisions and understanding federal laws. It is in charge of explaining the laws and having the power to decide if the laws are constitutional (Brand). The Judicial Branch is different from the other branches because, the members are appointed by the president and then approved by the Senate. This branch provides a comfort for the citizens to understand that the branches are dedicated to maintain equality and make sure they are fair laws. Even though, the judicial branch doesn’t have much power, it is just as important as the other two branches. With the separation of powers it gives citizens a voice and makes our government liberal. By providing a check and balance system, it provides less power to the president which doesn’t allow the president to make up the laws as he wishes. The checks and balances provide the citizens to be able to check the effectiveness of the laws made and if someone finds any one law unfair can take actions against it. Therefore the system of checks and balances provides an easy flowing popular system. The Legislative, Executive and Judicial branch are what makes America government system different. It creates an equilibrium of

Judicial Branch: The Government's Ear Essay

• 6 Works Cited

The Judicial Branch is the balancing factor of the Government. It is the listener of the people of the US and it decides on all matters regarding the people. It "interprets the nation's law" (World Book 141). Being able to interpret the law gives the Judicial branch a special kind of power. One of which the Executive Branch and the Legislative Branch do not possess. The Judicial branch decides when a law has been broken, to what extent, and how to punish the criminal act. And that is what makes it the strongest branch.

Separation Of Power Dbq

Separation of powers, checks and balances, and federalism are ways the government doesn't have too much power. Separation of powers makes sure no one gets too much power. Checks and Balances makes sure the three branches can monitor each other. Federalism is a system of government where the states government shares power with the national government. The founders of the constitution included the principles of separation of powers, checks and balances, and federalism in order to prevent the government from being too powerful.

Checks and Balances Essay

Executive power is vested in the office of the President of the United States. The President has the dual role of being the chief of state and the head of government. The President is also commander in chief of the armed forces. He issues executive orders, and appoints Supreme Court justices (with senate approval). The president is also called "the chief legislator" because he indirectly proposes many bills, considers all bills from Congress and signs them into law or vetoes them.

Checks And Balances Essay

The Judicial Review it helps to make sure that all new laws passed do not voglite the constitution. Or are rights as citizens. This power however is weekend by a slow to act congress. It is also strengthened by the changing opinions of the court judges. The job of the federal government is to lead but also protect the rights and freedoms of its citizens. Judicial review accomplishes this by insuring that laws are checked with the constitution.

The Structure Of Our American Government Essay

With the U.S. Constitution one of the strengths is how it divides federal powers between three main branches, legislative, executive, and judicial. Which is defined by the separation of powers doctrine, and provides a system of checks and balances to prevent one branch from overpowering the other. This is why separation of powers is important because if one person had unlimited power, then others would be suppressed. The separation of powers divides certain tasks among the three branches so that they can check each

Constitution Limits The Power Of Government

The powers executive has are being able to veto, or reject, a proposal for a law, and appoint federal posts. The executive branch has power, but it, as well as the others, has to be limited. The president has the power to make appointments, including to the Supreme Court, but his choices must be approved by the Senate, which leaves him not as powerful as it may seem.

7 Principles Of The Constitution

The Separation of Powers is important because of many different reasons. First, the power in the government is split up into three branches including the following: Legislative, Executive, and Judicial. This helps distribute the power and not have any collisions between who has what. Also, all three branches are able to do their own things but in the end they all have the same goal. With this certain principle, this allows the government to run smoothly and stay on track. Overall, this is a very important role that cannot be changed.

Who Is King George Lll A Tyrant

The government is divided into three branches. Legislative, Executive, and Judicial. James Madison states in his Federalist papers, “Liberty requires that the great departments of powers should be separate and distinct.” Legislative writes the laws for and consists of the House of Representatives and Senate. Executive branch passes the laws the legislative branch makes and the President is the head of this branch. Judicial branch decides if laws are constitutional or not and consists of the Supreme Court. This keeps one branch from getting too much power.

The Constitutional Convention Of Philadelphia Essay

One of the most important principles incorporated in the U.S. Constitution is separation of powers. The U.S. Constitution divided the central government into three branches and created a system of checks and balances as a way to prevent the concentration of power. “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.” In order to be sure that the main

With the U.S. Constitution one of the strengths is how it divides federal powers between three main branches, legislative, executive, and judicial. Which is defined by the separation of powers doctrine, and provides a system of checks and balances to prevent one branch from overpowering the other. This is why separation of powers is important because if one person had unlimited power, then others would be suppressed. The separation of powers divides certain tasks among the three branches so that they can check

The Framers Of A Just Government In The 1787 Constitution

Framers of the constitution feared tyranny within the government. To avoid this, checks and balances were put into place. These checks and balances of power ensured that the branches of government did not violate their respective power and that no forms of legislation should go into effect without being checked by all branches. A Just government should have this system because it provides an equal field on which the legislative, executive, and judicial branch can propose, pass, or deny bills. If we as a people are going to give someone else power,then there should be a system in which those people are checked and kept in line, so that our country remains free. Separation of power was also put into place as a way to keep all the branches equal. Each branch was given a

The President 's Formal Powers Essay

The president also has the power Veto laws passed by congress. The president has the power to make political appointment and negotiate treaties with foreign countries, however this power also requires the approval of the senate. The President is responsible for making a for appointing his cabinet and federal judges. The president is capable of calling congress in session and the power to adjourn congress.

The Articles Of Confederation And The Constitution After The Constitutional Convention In 1787

• 10 Works Cited

After the Constitutional Convention in 1787, the United States Government was reorganized under the Constitution. This gave the federal government far more power than did the Articles of Confederation, which invested power within the states. Basically, the Constitution created three branches of government (Executive, Judicial, and Legislative) which would work together to run the government. To make sure that there was an equal balance of power among the branches, a system of checks and balances was devised so that each branch could limit the power of the others. It is important to note that "the doctrine of separation of powers is not established by any constitutional provision [but] rather it emerges from he framers'

Separation of Powers and Checks and Balances

Checks and balances does not separate the powers, rather it expands off of it. Checks and balances gives each entity of government a different advantage over the other.

Essay about The Three Branches of the U.S. Federal Government

The powers of the judicial branch rest in the courts, which decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution. The latter power is known as judicial review and it is this process that the judiciary uses to provide checks and balances on the legislative and executive branches. However, judicial review is not an explicit power given to the courts, but it is an implied power. The judicial branch is established in Article III of the Constitution. The judicial branch consists of nine justices, including a chief justice, appointed for life terms by the president with the consent of the Senate. The court also serves as a trial court in cases involving foreign ambassadors, ministers, and consuls, and in cases where a U.S. state is a party.

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International Relations and the Constitutional Separation of Powers

In 1787 the Constitution granted significant new powers to the central government, including those traditionally held by sovereign nations. In response to Anti-Federalist concerns about a too-powerful central government, James Madison explained in Federalist No. 51 that the new system of government was designed to work with 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. 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions” (James Madison, Federalist No. 51 , 1788).

Because the new U.S. government divided power among different branches and levels, ambition would “counteract ambition,” according to Madison. In other words, when individuals in office tried to take on more power, those attempts would be contested, by others in rival offices (who, in principle, were also ambitious). The checks and balances in the system depended on the “backbone” of all the people in office and their willingness to stand up for adherence to proper constitutional roles and limits. For instance, as explained in Federalist No. 74 , the president’s role as commander in chief occurs only when the military is called into the service of the nation by the legislature (Alexander Hamilton, Federalist No. 74 , 1788). The president may negotiate treaties with foreign nations, but he must obtain advice and consent from the Senate. Alexander Hamilton explained that the treaty-making power is neither wholly legislative nor wholly executive, but is a function of both branches:

“The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones… Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith” (Alexander Hamilton, Federalist No. 75 , 1788).

The principles of separation of powers and checks and balances ingrained in the Constitution help to protect the people from government overreach and the internal government actors from overstepping their own powers.

The President as “Chief Diplomat”

Checks and balances were built into the new government’s power to direct and control foreign affairs. The president would be the nation’s “Chief Diplomat.” Though those words do not appear in the Constitution, it is undisputed that the president represents the country on the world stage. But his power in this role was not meant to be unchecked. While the president can negotiate treaties with other nations, he needs the “advice and consent” of the Senate. Further, the House of Representatives has the power to appropriate any funds needed to bring treaties into effect.

Although the Constitution defines roles for the president and Congress in the arena of international relations, the balance of power between the president and Congress has been in play throughout American history.

Washington’s Neutrality Proclamation

As the nation’s first president, George Washington set several precedents related to the chief executive’s power to guide foreign policy.  One of the first appearances of America on the world stage was a small part in the war that took place between revolutionary France and Great Britain. France was on the brink of a bloody reign of terror, having overthrown its monarchy and beheaded its king and queen. Thousands of French citizens would soon die at the guillotine. Yet support for France was still strong in the United States. Despite the bloodbath, many sympathizers with the Revolution—the Jeffersonians saw hopeful signs of popular government spreading across the Atlantic.

Washington issued a Proclamation of Neutrality in 1793, declaring that the United States would remain neutral in the war between Great Britain and France.  This action sparked a sustained argument between two pseudonymous newspaper essayists that became known as Pacificus-Helvidius debates. James Madison, writing as Helvidius, argued that the power to declare war was “expressly vested in the Congress.” He went on to explain that “those who are to conduct a war [presidents] cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous [similar] to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

Alexander Hamilton, writing as Pacificus, defended Washington’s action, asserting that unless war was declared, the president had a responsibility to keep the country out of war when possible: “A Proclamation of Neutrality… is a usual and a proper measure… [for] a Country whose true interest lies in the preservation of peace” (Alexander Hamilton, Pacificus No. 1 , 1793).

This early debate between two Founding Fathers—and the larger political community—about the definitions and limits of power was a sign of the growing partisanship in the early republic. The debate was not settled then; if anything, it began to intensify.

Abraham Lincoln and the Civil War

The Civil War, although it was a war between the Union and the Confederacy, had international implications. In the Emancipation Proclamation (1863), President Abraham Lincoln declared that he was freeing slaves as a war measure. He limited slavery in the rebelling states (although not in the Confederate territory already under Union control). These freed slaves would be welcomed into the Union Army. Many Democrats opposed to Lincoln argued that the Proclamation was a clear abuse of executive power. Some Republicans argued that the Proclamation did not go far enough, in that it did not emancipate all slaves. Still, the Emancipation Proclamation gave the North moral superiority over the South, and made it practically impossible for Britain to aid the South in the war. (England’s Parliament had ended slavery peacefully throughout the British Empire many years earlier.)

Throughout the Civil War, Lincoln stood on the principle that the war was not international—that it was one nation’s internal conflict, not between two nations.

Wilson and the Treaty of Versailles

The United States did enter into an international conflict—World War I—in the early twentieth century.

Although President Woodrow Wilson ran for reelection in 1916 with the slogan “He kept us out of war,” he asked Congress for a Declaration of War in 1917 to “make the world safe for democracy” (Woodrow Wilson, “Speech to Congress,” April 2, 1917). By the end of World War I, President Wilson negotiated with the leaders of the Allies against Germany to write the Treaty of Versailles. He was forced to make extreme concessions from his peace plan, the Fourteen Points, based on the principle of the self-determination of nations. He remained confident in the League of Nations—one of his Fourteen Points—to fix remaining problems in the treaty. Back in the United States, however, he was disappointed to learn that some senators, led by the Republican Henry Cabot Lodge, were strongly opposed to joining the League of Nations, and the treaty was rejected by the Senate.

Wilson’s uncompromising attitude neither sought nor accepted the Senate’s advice on the treaty, and for the first time in American history, the Senate refused to ratify a peace treaty negotiated by the president.

Ronald Reagan and the Cold War

Later presidents would continue to exercise leadership in the role of guiding the nation’s international relations, with varying results.

One of the most successful “Chief Diplomats” was President Ronald Reagan, who helped to bring about the end of the Cold War with the Soviet Union. While his three predecessors had to varying degrees pursued détente (seeking to conciliate with the Soviet Union), Reagan preferred to seek peace through strength. He wanted to bring the evils of communism to light, and through an arms race sought to expose the weaknesses of the Soviet’s centrally-planned economy.

He said in 1982 that “history teaches the dangers of government that overreaches—political control taking precedence over free economic growth, secret police, mindless bureaucracy, all combining to stifle individual excellence and personal freedom” (Ronald Reagan, “Address to Members of the British Parliament,” June 8, 1982).

In 1987, in a speech at the Berlin Wall separating the free part of Berlin from Communist East Berlin, he challenged Soviet Premier Mikhail Gorbachev to “tear down this wall,” highlighting the evil of a government that had to trap people like caged animals. The Cold War came to an end three years after Reagan left office when the Soviet Union collapsed in 1991. Reagan’s actions highlight the many means the president has to direct the nation’s international relations.

Related Content

In 1787 the Constitution granted significant new powers to the central government, including those traditionally held by sovereign nations. In response to Anti-Federalist concerns about a too-powerful central government, James Madison explained that the new system of government was designed to work with human nature.

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Separation of Powers and Checks and Balances, Essay Example

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Our founding fathers aimed for the separation of powers because it would prevent the concentration of power in the hands of a single individual or an entity. Separation of Powers is the political doctrine that defines the concentration of power in the U.S. The U.S. government has three main branches that are distinct from each other. They are the Judiciary, Legislative, and the President. This form of government is to ensure democratic spirit in the government.

These three distinct branches of the government also ensure the system of checks and balances to prevent too much power getting in the hands of any single government branch. The Legislative branch which is the U.S. Congress has the power to write and enact laws, set budget, and ratify treaties among other things. The President is the head of the state and enjoys powers such as issuing executive orders, appointing judges and the authority to veto laws. The Judiciary branch which is the Supreme Court ensures that the laws enacted by the Congress do not violate the spirit of the constitution. The Judiciary is also responsible for interpreting the constitution when differences arise (The Dirksen Congressional Center 2008).

Thus, each branch has the ability to influence the decisions made by any other branch. The judiciary can intervene if it believes Congress violated the spirit of the constitution or if executive decisions may be unconstitutional. Similarly, legislative branch can override presidential veto with two-third majority and also has the power to remove president through impeachment. President has the veto power over the bills passed by the legislative branch and can also recommend legislation (Kelly n.d.).

Kelly, Martin. Checks and Balances. http://americanhistory.about.com/od/usconstitution/a/checks_balances.htm (accessed March 27, 2012).

The Dirksen Congressional Center. The Three Branches of Government. 2008. http://www.congressforkids.net/Constitution_threebranches.htm (accessed March 27, 2012).

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47 , political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier. 1 Footnote The Federalist No. 47 (James Madison) . Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters. 2 Footnote The Constitution of Virginia of 1776 provided: “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[.]” The Constitution of Virginia of 1776 , reprinted in 10 Sources and Documents of United States Constitutions 52 (William F. Swindler ed., 1979) . See also 5 id. at 96 . Similarly, the Massachusetts Constitution of 1780 provided: “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.” The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention. 3 Footnote The Federalist No. 51 (James Madison) ( “In republican government the legislative authority, necessarily, predominates.” ). See also id. No. 48 . This theme continues to influence the Court’s evaluation of congressional initiatives. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991) . But compare id. at 286 n.3 (White, J., dissenting). Theory as much as experience guided the Framers in the summer of 1787. 4 Footnote The intellectual history of the Confederation period and the Constitutional Convention is detailed in Gordon S. Wood , The Creation of the American Republic, 1776–1787 (1969) .

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed. 5 Footnote See, e.g. , M.J.C. Vile , Constitutionalism and the Separation of Powers (1967) . The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously. 6 Footnote The Federalist No. 47 (James Madison) .

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation, 7 Footnote U.S. Const. art. I, § 7 . but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties. 8 Footnote Id. art. II, § 2, cl. 2 . Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers. 9 Footnote See, e.g. , The Federalist No. 47 (James Madison) ( “[O]ne of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. . . . The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” ). In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue. 10 Footnote Id. Nos. 47–51 (James Madison) .

In the Federalist No. 47 , Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution. 11 Footnote Id. No. 47 (James Madison) . According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 12 Footnote Id. Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty. 13 Footnote Id. Nos. 47–49 . Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 14 Footnote Id. No. 51 . Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 15 Footnote Id.

To achieve the principles articulated by Madison in the Federalist No. 47 , the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance, 16 Footnote U.S. Const. art. I, § 1 . while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach. 17 Footnote Id. art. I, § 7 . The Senate’s role in appointments and treaties provides a check on the President. 18 Footnote Id. art. II, § 2, cl. 2 . The courts are assured independence from the political branches through good-behavior tenure and security of compensations, 19 Footnote Id. art. III, § 1 . and, through judicial review, the courts check the other two branches. 20 Footnote Id. ; Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) . The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches. 21 Footnote U.S. Const. art. I, § 2, cl. 5 ; id. art. I, § 3, cl. 6 . For a more detailed discussion of the separation of powers and checks and balances, see Intro.7.2 Separation of Powers Under the Constitution and Intro.7.1 Overview of Basic Principles Underlying the Constitution.

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Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary

The three branches of the government are the executive, the legislature and the judiciary. Although the three have distinct functions to perform, their scope sometimes meets. In this article, you can read all about the relationship between the three arms of the government for the UPSC exam polity section. Separation of powers is a very important topic for the polity & governance segment of the UPSC syllabus. This is important for both the prelims and the mains exams. What do you mean by separation of powers? How is the concept of the separation of powers implemented? What does the Indian Constitution say about the separation of powers? Read this post to find out answers to all these questions.

Separation of Powers

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature. 

Today, most constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. In the following sections, we will see the prevailing system in India, what the relationship between each organ is, and the constitutional provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each organ of the government are.

What is the Legislature?

The chief function of the legislature is to enact laws.

• It is the basis for the functioning of the other two organs, the executive and the judiciary.
• It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

• It is the administrative head of the government.
• Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. 

• The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

For more on the Indian Judiciary , click on the linked article.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid. 

Background of the concept

• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.
• The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary.  Although different authors give different definitions, in general, we can frame three features of this doctrine.

• Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
• One organ should not interfere in the functioning of the other organs.
• One organ should not exercise a function of another organ (they should stick to their mandate only).

Thus, these broad spheres are determined, but in a complex country like India there often arises conflict and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State? Whenever there is a concentration of power in one centre/authority, there is bound to be greater chances of maladministration, corruption, nepotism and abuse of power. This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

• Keeps away autocracy
• Safeguards individual liberty
• Helps create an efficient administration
• Judiciary’s independence is maintained
• Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of powers.

Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.

Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.

• The judiciary has the power of judicial review over the actions of the executive and the legislature.
• The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
• It can also declare unconstitutional executive actions as void.
• The legislature also reviews the functioning of the executive.
• Although the judiciary is independent, the judges are appointed by the executive.
• The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

Judicial Pronouncements Upholding Separation of Powers Doctrine

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor’s pardon of a convict unconstitutional.

Other SC Judgements

• The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
• In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution there is a separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. The Court further held that adjudication of a specific dispute is a judicial function that Parliament even acting under a constitutional amending power cannot exercise. Apart from difficulties inherent in the enforcement of the strict doctrine of separation of powers in the functioning of the modern government, there is also an inherent difficulty in defining, in workable terms, the division of powers into executive, legislative and judicial.
• In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations. Where an Act made by the legislature is invalidated by the Courts on the basis of legislative incompetence, the legislature cannot enact a law declaring that the judgement of the Court shall not operate; it cannot overrule or annul the decision of the Court. But this does not mean that the legislature which is competent to enact the law cannot re-enact the law. Similarly, it is open to the legislature to alter the basis of the judgement. The new law or the amended law can be challenged on other grounds but not on the ground that it seeks to ineffectuate or circumvent the decision of the court. This is what is meant by “checks and balances” inherent in a system of government incorporating separation of powers.

Constituent Assembly and Separation of Powers

There are chiefly two reasons why the Constituent Assembly did not insert the separation of powers doctrine explicitly in the Constitution.

• The founding fathers thought that it was too late to insert this principle as the Constitution was already drafted.
• Also, India adopted the British parliamentary form of government. So, they thought it was better to avoid adopting a complete separation of powers doctrine like the American model.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the system of checks and balances ensures that each one can impose checks on the other.

• The judiciary can strike down laws that it considers unconstitutional or arbitrary.
• The legislature, on its part, has protested against judicial activism  and tried to frame laws to circumvent certain judgements.
• Judicial activism is said to be against the principle of separation of powers.
• There have been instances where the courts have issued laws and policies through judgements. For example, the Vishakha Guidelines  where the SC issued guidelines on sexual harassment.
• In 2010, the SC directed the government to undertake the distribution of food grains.
• If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the executive, it is called judicial overreach .

Judicial Supremacy and Parliamentary Sovereignty

To strike a balance between the judiciary and the legislature, the Indian constitution uses the following principles:

• The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.
• The doctrine of Judicial Supremacy has been adapted from the American Constitution.
• The power of judicial review of the Supreme Court of India is narrower in scope than the Supreme Court of the USA.
• The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the ‘due process of law’ provided in the American Constitution.
• The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary sovereignty and the judicial supremacy of the USA.
• The Supreme Court, on the one hand, can declare the parliamentary enactments as unconstitutional using the power of judicial review.
• The Parliament, on the other hand, can amend a large chunk of the Constitution using its constituent power.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of the government and hold it accountable for its actions.

• In a parliamentary form of government, the executive is not separated from the legislature in that the members of the council of ministers are members of the legislature.
• The executive loses power when it loses the confidence of the legislature. The executive/council of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the legislature controls the executive through a vote of no-confidence.
• The head of government and head of state are different. The head of the government is the Prime Minister while the head of state is the President.
• The parliament makes laws in general broad terms and delegates the powers to the executive to formulate detailed policies and implement them.
• In a presidential form of government, the executive is not accountable to the legislature. One person is the head of both the State as well as the government. A minister need not be from the legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent. This is because, it is believed that for a democracy to remain efficient and effective, the judiciary must be independent. The judiciary is said to be the guardian of the Constitution. If the executive also assumes judicial powers, that sort of government tends to become oppressive.

However, there are some judicial functions which are performed by the executive as well. They are:

• The appointments of the judges are made by the executive.
• The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct judicial functions.
• Under the system of administrative adjudication, the executive agencies have the power to hear and decide cases involving particular fields of administrative activity.

Read more about the Supreme Court of India.

The judiciary also performs some executive functions. It can review the actions of the executive and declare them void if found unconstitutional.

Checks and Balances

The strict separation of powers that was envisaged in the classical sense is not practicable anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of polarity rather than strict classification meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of checks and balances.

• In Indira Nehru Gandhi’s case, Chandrachud J. observed – No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems intertwined in the political thicket, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which “has in it the precept, inmate in the prudence of self-preservation; that discretion is the better part of valour”.
• The doctrine of separation of powers in today’s context of liberalization, privatization and globalization cannot be interpreted to mean either “separation of powers” or “checks and balance” or “principles of restraint”, but “community of powers” exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

Judicial Overreach

The Supreme Court has been accused time and again of pronouncing judgements that are often termed as judicial legislation. This happens when in the guise of giving guidelines and creating principles, they assume the powers of the legislature, for instance, by laying down the basic structure doctrine, the Supreme Court has put limitations on the legislature’s power to make and amend laws.  The judiciary through the collegiums system has also been accused of infringing on powers of other branches. The essential function of the judiciary is to interpret the law rather than to be keen in the appointment of judges. After all, ours is a parliamentary form of democracy wherein parliamentarians are elected by the people and they have to face the people, they are filling the slogan of “We the People”; as compared to this, judges are enjoying fixed tenure. They are accountable to none as such and they should concentrate on justice delivery rather than the appointments.

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Separation of Powers in the Indian Constitution – Indian Polity:- Download PDF Here

UPSC Questions Related to Separation of Powers

What is the separation of powers in the constitution.

It is a doctrine in which the three organs of the government, the executive, the legislature and the judiciary have separate functions and powers, and one organ does not interfere in the functioning of the others.

What do you mean by checks and balances in the Indian Constitution?

It is a system by which no organ of the government abuses its own power. Checks and balances ensure that one organ does not become all too powerful.

Who introduced the separation of powers?

18th-century French political philosophers Charles-Louis de Secondat, and Baron de Montesquieu propounded the doctrine in a scientific and systematic manner, although the principle was used even in ancient times.

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