Limiting Power

Separation of Powers

Separation of powers divides government into three branches, each with its own job:

Montesquieu

The French writer Baron de Montesquieu argued in The Spirit of the Laws (1748) that liberty cannot survive when the same person or body makes, enforces, and judges the law. He drew partly on his reading of the British system. The Framers cited him often. Madison called him "the celebrated Montesquieu" in Federalist No. 47.

The Constitution's first three articles open with "vesting" clauses that give each kind of power to a different branch:

"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." (Art. I)
"The executive Power shall be vested in a President of the United States of America." (Art. II)
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (Art. III)

U.S. Constitution

The separation is personal as well as structural. Article I, Section 6 forbids any member of Congress from holding another federal office at the same time. A senator who becomes a cabinet secretary must resign from the Senate.

The idea had already appeared in state constitutions. The Massachusetts Constitution of 1780 declared that each branch shall never exercise the others' powers, "to the end it may be a government of laws and not of men."

Checks and Balances

Separating power is not enough. The Framers also gave each branch ways to limit the others. This system is called checks and balances. In Federalist No. 51, Madison explained that each branch needs "the necessary constitutional means and personal motives to resist encroachments of the others." His famous summary: "Ambition must be made to counteract ambition."

Judicial review is not spelled out in the Constitution's text. The Supreme Court established it in Marbury v. Madison (1803). Constitutional amendments have sometimes reversed Court decisions. The Sixteenth Amendment (1913) allowed an income tax after the Court had struck one down in 1895.

Checks and balances can make government slow. That is partly the point: major changes require broad agreement among branches chosen in different ways and for different terms.

The Rule of Law

The rule of law means that everyone, including the most powerful officials, is subject to the same known laws. Government power must be exercised through law, not by the personal will of rulers. It has several parts:

• No one is above the law. Presidents, governors, police officers, and judges must obey it too.
• Laws are public, clear, and applied equally. Secret or changing rules invite abuse.
• Laws apply going forward. The Constitution bans ex post facto laws, which punish acts that were legal when committed. It also bans bills of attainder, which punish a named person or group without a trial (Art. I, Sections 9 and 10).
• Independent courts resolve disputes under the law.

Roots

The Magna Carta (1215) established that even the king was bound by the law of the land. It promised: "To no one will we sell, to no one deny or delay right or justice." Thomas Paine wrote in Common Sense that "in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King." The Massachusetts Constitution aimed at "a government of laws and not of men."

A modern test

In United States v. Nixon (1974), the Supreme Court unanimously ordered President Nixon to turn over subpoenaed tape recordings. It held that executive privilege is not absolute. In a 1977 interview, Nixon said, "when the president does it, that means that it is not illegal." That statement is a classic example of a claim that contradicts the rule of law.

Constitutionalism and Limited Government

Constitutionalism is the principle that government must follow a fundamental law, a constitution, that both creates its powers and limits them. A constitution is "higher law." Ordinary laws that conflict with it are invalid. The main job of a written constitution is to set out the structure and powers of government and the limits on those powers.

Limited government is closely related. Government may exercise only the powers the people have granted it. The U.S. Constitution lists, or enumerates, the powers of Congress. The Tenth Amendment reserves other powers to the states or the people. The Bill of Rights lists things government may not do.

Philosophical and practical foundations

• Philosophical: If government is created by a social contract to protect natural rights, the people may set terms and limits on it. Writing those terms down makes them harder to ignore.
• Practical: The colonists had lived under the unwritten British constitution and believed Parliament had violated it. Americans wanted written charters. Colonial charters, the Mayflower Compact, and the first state constitutions gave them experience.
• Stability with flexibility: The U.S. Constitution, written in 1787, is widely described as the oldest written national constitution still in use. It lasts partly because it can be amended (Article V) and partly because amendment is hard. The supermajorities required protect fundamental principles from temporary majorities.

Federalism

Federalism divides power between a national (federal) government and state governments. Each level has its own powers and acts directly on the people. Compare the three basic systems:

Dividing the powers

• Delegated (expressed/enumerated) powers belong to the national government: coining money, declaring war, making treaties, regulating interstate and foreign commerce, establishing post offices.
• Reserved powers belong to the states under the Tenth Amendment: establishing public schools, issuing marriage and driver's licenses, creating local governments, most criminal law, and public health and safety (often called the "police power").
• Concurrent powers are shared: collecting taxes, borrowing money, making and enforcing laws, establishing courts.
• Denied powers are forbidden to one or both levels. For example, states may not coin money or make treaties (Art. I, Sec. 10).

When valid federal law conflicts with state law, the Supremacy Clause makes federal law win.

Federalism in practice and over time

The balance has shifted throughout American history:

• McCulloch v. Maryland (1819) read national power broadly through implied powers and federal supremacy.
• The Civil War settled that states cannot secede. The Fourteenth Amendment (1868) gave the national government authority to protect individual rights against the states.
• The New Deal of the 1930s and the civil rights era greatly expanded federal activity, often through the Commerce Clause.
• United States v. Lopez (1995) marked an important limit on federal power.

Money is a major tool of modern federalism. Categorical grants are federal funds for a specific purpose with strict conditions. Block grants are funds for a broad area with more state flexibility. An unfunded mandate is a federal requirement placed on states without money to pay for it.

Federalism lets states act as "laboratories of democracy." Justice Louis Brandeis made that point in 1932. States can try different policies, and citizens can participate in government at levels close to home.