In what ways might the separation of powers be necessary for effective Democracy?

In what ways might the separation of powers be necessary for effective

Democracy?

Krysto Nikolic

In order to investigate and analyse the necessity of powers in an effective democracy, we will look mainly at the work of Madison in The Federalist Papers but also at previous thought regarding the separation of powers. In his subliminal work, Madison argues for the bending of the separation of powers in order to protect them. Rejecting the earlier notion of complete autonomy, he moves for some sort of linkage between the different bodies of government; a system of checks and balances that would stave off any attempts at tyranny. His work, pragmatically, is an attempt to ratify the introduction of the American Constitution in New York, but his discussion holds deeper meaning for us.

According to some, the introduction of the American constitution weakened legislative power by strengthening magisterial power, and by dividing the unitary legislature into two braches. All of this was in the name of the abstract principle of the separation of powers, which for the framers of the constitution embodied a counter ideal of liberty. However, the seemingly rational division of government into three separate functions – the making, executing, and adjudicating of laws – carried with it historically in the British world and even theoretically in the writings of both Locke and Montesquieu the notion not only of separation but of mixture too. Both Locke and Montesquieu, for example, gave the executive a share in the legislative power and both acknowledged that judicial role of the House of Lords. From its outset, then, the doctrine of separating functions of governmental power had incorporated an ideal of balancing one form of power or branch of government against the other.

Behind this lies another political ideal inherited from the past which further complicates the issue, that of mixed government, which asserted that the most desirable form of government balanced off not governmental functions but social forces or, as they were often called, estates. This ideal assumed that involving – i.e mixing - all a community’s social forces in a regime would avoid extremist and provide moderate and temperate government. Aristotle was the father of this doctrine. The excesses of democracy, aristocracy and tyranny (extremist rule by the many, the few, and the one) are avoided, he taught, by combining elements of rule by the many, the few and the one in the same government. This conviction was repeated in Polybius and in Roman thought and was writ large in apologists for the British Constitution from the late middle ages on.

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The Romans had an abstract political theory, which defined tyranny and liberty by whether or not the functions of government were placed in separate hands. They also had a concrete social theory, which linked moderate and non extremist government with a system that contained a mixture and balance of the social groups within a community. On this, people such as James Madison have drawn. According to Madison, functions of government would become arenas for particular social forces to dominate, and the separation and independence of these functions, it was argued, required a balancing of each against the other, through a sharing and “intermixture” of power. The three functional areas of government (Executive, Judiciary, Legislature) would become battlegrounds for social forces, which, it was felt, had to balance and check each other in order to produce a moderate, temperate, cooler government.

Madison’s work, perhaps because of it’s less abstract nature, is much more cogently argued. In Federalist No 51, he begins by explaining that the purpose of his essay is to help the readers understand how the structure of the proposed government makes liberty and democracy possible. Each branch should be, for the most part, independent. To assure such independence, no one branch should have too much in selecting members of the other two branches. If the principle were strictly followed, it would mean that the citizens should select the President, the legislators, and the judges. However, the framers recognized certain practical differences in making every office elective. In particular, the judicial branch would suffer because the average person is not aware of the qualifications a judge should possess. Judges should have great ability, but also be free of political pressures. Since federal judges are appointed for life, their thinking will not be influenced by the President who appoints them, or the senators whose consent the president will seek.

Madison furthers, the members of each branch should not be too dependent on the members of the other two branches in the determination of their salaries. The best security against a gradual concentration of power in any one branch is to provide constitutional safeguards that would make such concentration difficult. The constitutional rights of all must check one man’s personal interests and ambitions. We may not like to admit that men abuse power, but the very need for government itself they do, “if men were angels, no government would be necessary”. Unfortunately, according to Madison, all men are imperfect, the rulers and the ruled. Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. The dependence of the government on the will of the people is undoubtedly the best control, but experience teaches that other controls are necessary.

According to Madison, dividing power helps to check its growth in any one direction, but power cannot be divided absolutely equally. In the Republican form of government, the legislative branch tends to be the most powerful. That is why the framers of the constitution divided the congress into two branches, the House of Representatives and the Senate, and provided for a different method of election in each branch. Further safeguards against legislative tyranny may be necessary.

In a representative democracy, it is not only important to guard against the oppression of rulers, it is equally to guard against the injustice which may be inflicted by certain citizens or groups. Majorities often threaten the rights of minorities. There are only two methods of avoiding evil. The first is to construct a powerful government, a community will. Such a “will” is larger than, and independent of, the simple majority. This “solution” is dangerous because such a government might throw its power behind a group in society working against the public good. According to Madison, in the U.S., the authority to govern comes from the entire society – the people. In addition, under the constitution is divided into many groups of people who hold different views and have different interests. This makes it very difficult for one group to dominate or threaten minority groups. Madison concludes 51 by stating that self government flourishes in a large country containing many different groups. Some countries are too large for self government, but the proposed plan modifies the federal principle enough to make self government both possibly and practical in the United States.

So we can see that, in Madison’s political solution, checks and balances existed that there were multiple entry points into the government and multiple ways to offset the power that any one branch of the government might otherwise acquire over another. In this system, “constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”. These institutional arrangements were reinforced by the sociological fact that the Republic contained a multiplicity of interests that could, and did, offset each other: “While all authority in it will be derived and dependent on the society, the society itself with be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority”. It is good that there are many group interests; that they be numerous is less important than they be impermanent and shifting alliances whose components vary with the specific policy case.

The Federalist Papers Nos 63 and 78 deal with, respectively, the importance of both the Senate and an independent judicial branch. Important in Madison’s notion of politics, is responsibility in the government to the people. The senate, however, is in power long enough to be responsible for the decisions that it makes. The senate, therefore, blends stability with the ideal of liberty. In addition, “history informs us of no long lived republic which had not a senate”. Some people, however, might argue that six years is too long and leads to tyrannical situations. Madison answer, however, that in order for the Senate to corrupt, it must corrupt itself, the state legislatures, the House of Representatives, and the people at large. It, therefore, is not possible in only six years. If we do not believe Madison, then we need only to look to Britain’s House of Lords, a hereditary assembly, which has not infected the rest of the country. With the balance of the House of Representatives to guard and represent the people, the Senate is a necessary and important function of government that will support the “people themselves”.

The importance of an independent judicial branch should also not be overlooked. Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and congress. As a result of the judicial branch being by far the weakest branch of government, political rights are less threatened. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty. This branch provides yet another check on overgrown power; unless the courts are independent and have the power to declare laws in violation of the constitution null and void, those protections amount to nothing.

So we can see that the separation of powers is vital if democracy is to be ensured. Without a system of checks and balances, power could grown in one particular direction and remain unchecked. However, this separation should not leave each branch in complete isolation; there should be an “intermixture”. According to Madison, the separate and distinct exercise of powers required a defensive sharing of power, in which defending against the encroachment of another’s power required “giving those who administer each department the necessary constitutional means” for that defense.