by David Barton
Historically, the separate role and function of each branch was clearly understood.
The Founders first made evident their opposition to blurring the lines of distinction between the branches during the Constitutional Convention when a “Council of Revision” was proposed. That Council would have combined representatives from the Judicial and Executives branches to review the constitutionality of legislation coming out of Congress. According to the records of the Convention:
Mr. [James] Wilson moved as an amendment … “that the Supreme National Judiciary should be associated with the Executive in the revisionary power.” … The Judiciary ought to have an opportunity of remonstrating against [reviewing and protesting] projected encroachments on the people as well as on themselves…. Laws may be unjust, may be unwise, may be dangerous, may be destructive…. Let them [the judges] have a share in the revisionary power and they will have an opportunity of taking notice of those characters of a law and of counteracting by the weight of their opinions the improper views of the Legislature.71
The reaction of the other delegates to this proposal was unambiguous:
Mr. [Elbridge] Gerry…. [said] the motion was liable to strong objections. It was combining and mixing together the Legislative and other departments…. It was making statesmen of the judges and setting them up as the guardians of the rights of the people. He relied for his part on the Representatives of the people as the guardians of their rights and interests. It was making the expositors of the laws [the judges] the legislators which ought never to be done…. Mr. [Caleb] Strong thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding the laws…. Mr. [Luther] Martin considered the association of the judges with the Executive as a dangerous innovation as well as one which could not produce the particular advantage expected from it.72
The result was that even though three of the most influential of the Convention’s participants (James Madison, James Wilson, and George Mason) championed this concept, it was voted down on four occasions.73
This rejection of mixing one branch into the affairs of another was also made evident in the Marbury v. Madison case (1803).74 This case came as a result of actions taken during the final hours of the Presidency of John Adams. In those last hours before Jefferson took office, Adams, in an attempt to bolster the power of the Federalists in the Judiciary, issued several Federalist judicial appointments in the District of Columbia. When Jefferson entered office, those appointments, even though legally executed by President Adams, had not yet been delivered. President Jefferson refused to deliver the appointments.
William Marbury, one of the thwarted appointees – along with three others who did not receive their commissions – sued James Madison, Jefferson’s Secretary of State, to receive the appointments. That suit reached the Supreme Court, where John Marshall was Chief Justice.
Interestingly, Marshall, a staunch Federalist, had simultaneously served as Secretary of State under John Adams and as Chief Justice of the Court.75 The judicial appointments which were not delivered, and which had become the subject of the lawsuit, had actually been sitting on Marshall’s own desk as Secretary of State; it was he who had failed to deliver them! Deeply grieved over this and foreseeing the problems he had created, Marshall told his brother, “I cannot help regretting it the more as I fear some blame may be imputed to me.”76 Now, as a Federalist Chief Justice of a Supreme Court still packed with Federalist members, the case had arrived before him and he was now to rule on whether those appointments should be delivered.
Marshall first determined that the Court had no judicial authority over the case. He then amazingly proceeded to strike down part of the 1789 Judiciary Act† – a law with which the Supreme Court on two previous occasions had found no fault.79 Finally, he ruled that President Jefferson should deliver the appointments.
How did Jefferson and Madison respond to the Court’s ruling? They ignored it – an act which outraged neither the public, the Congress, nor even the Court, for such a response was justified under the separation of powers. Jefferson later explained to Justice William Johnson (nominated to the Court by President Jefferson following the Marbury incident) the essence of the Court’s wrongful decision in that case:
The Court determined at once that, being an original process, they had no cognizance of it [no authority over the case] and therefore the question before them was ended. But the Chief Justice went on to lay down what the law would be had they jurisdiction of the case, to wit: that they should command the delivery…. Besides the impropriety of this gratuitous interference, could anything exceed the perversion of law?80 (emphasis added)
Jefferson considered it a “perversion of law” that the Judiciary should tell the Executive what to do. The precedent provided by Jefferson’s and Madison’s flat refusal to allow the Judiciary to interfere with Executive decisions was followed by other prominent Americans. For example, when the Court ruled that President Andrew Jackson was to take certain actions,81 he also ignored the Court’s order.82 On what grounds? Jackson explained:
Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others…. The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.83
President Abraham Lincoln once reminded his audience of another occasion when President Jackson had ignored the Court:
Do not gentlemen here remember the case of that same Supreme Court … deciding that a national bank was constitutional? [see McCulloch v. Maryland84 and Osborne v. United States Bank85]…. [Jackson] denied the constitutionality of the bank that the Supreme Court had decided was constitutional … [saying] that the Supreme Court had no right to lay down a rule to govern a coordinate branch of the government, the members of which had sworn to support the Constitution – that each member had sworn to support that Constitution as he understood it.86
Very simply, the separation of powers wisely permitted each branch to determine within its own sphere what was and was not constitutional.
These separations had been established for specific reasons. It was the lesson of history that the tendency of human nature was to accrue and abuse power, and that tyranny occurred whenever government power was consolidated in one branch. Therefore, the Founders believed that America would remain secure only if power was divided; in this way, if one branch became corrupt, the others might still remain trustworthy and thus be able to check any wayward influence. As George Washington explained:
A just estimate of that love of power and proneness to abuse it which predominates in the human heart, is sufficient to satisfy us for the truth of this position. The necessity of reciprocal checks in the exercise of political power by dividing and distributing it into different depositories … has been evinced [established].87
Alexander Hamilton similarly explained:
Why has government been instituted at all? Because the passions of men will not conform to the dictate of reason and justice without constraint…. [T]he infamy of a bad action is to be divided among a number [rather] than … to fall singly upon one.88
Quite simply, the security of the people in this form of government rested on maintaining the separation of powers. As Thomas Jefferson warned:
[T]o preserve the republican form and principles of our Constitution and [to] cleave to the salutary distribution of powers which that [the Constitution] has established…. are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering.89
The Founders were therefore understandably emphatic: each branch must confine itself to its designated responsibilities, and each branch must ensure that the others not encroach. George Washington cautioned:
[T]hose entrusted with its [the nation’s] administration [mu
st] confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism…. [B]ut let there be no change by usurpation [wrongful seizure of power]; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.90
James Madison admonished:
The preservation of a free government requires not merely that the metes and bounds which separate each department of power be universally maintained but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them and are slaves.91
Samuel Adams similarly warned:
In all good governments, the Legislative, Executive, and Judiciary powers are confined within the limits of their respective departments. If therefore it should be found that the constitutional rights of our federal and local governments should on either side be infringed, or that either of the departments aforesaid should interfere with another, it will, if continued, essentially alter the Constitution, and may, in time, … be productive of such convulsions as may shake the political ground upon which we now happily stand.92
If it was essential that the separation of powers be maintained, was the integrity and honor of each branch the only safeguard against encroachment? Certainly not. Based on their healthy skepticism for consolidated power, the Founders provided checks and balances to impede unauthorized encroachments by one branch upon another. As Alexander Hamilton explained in Federalist #73, each branch was furnished “with constitutional arms” for its own “effectual powers of self-defense.”93
For example, the Executive, in its check upon the Legislature, could veto legislative acts and convene the Congress into special sessions. Also, the Vice President serves as the President of the Senate and thus is able to cast a deciding vote in case of a tie. Furthermore, even though Congress is given oversight and regulation of the military, the Executive is its Commander-in-Chief. The Constitution also offers the Executive further protection from the Legislature by at least two explicit provisions. First, it prohibits Congress from reducing the salary of the Executive during his term, thus preventing the Executive from being subject to economic extortion by Congress. Second, to remove the Executive from office required a majority vote of the House and a two-thirds vote of the Senate, thus making it virtually impossible for Congress to manipulate the Executive office in a purely partisan manner. Over the Judiciary, the Executive could exercise a check by its selection of judges as well as by granting pardons to those parties the Executive believed were wrongly convicted by the Judiciary.
The Judiciary could exercise a check over the Legislature by its proper use of judicial review. As Oliver Ellsworth explained:
This Constitution defines the extent of the powers of the general government. If the general Legislature should at any time overleap their limits, the Judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void: and the Judicial power … will declare it to be void.94
The Constitution also offered the Judiciary the same two protections from the Legislature that the Executive received: salaries could not be diminished during a judge’s service, and the removal of a judge required a two-thirds vote by the Senate.
Finally, the Legislature exercised a check on the Executive by its role of “advise and consent,” requiring Congressional approval of treaties negotiated by the Executive and approval of all Executive nominees, whether to the Judiciary or to head Executive departments. Furthermore, the Congress had the ability to override the Presidential veto of a legislative act. Over the Judiciary, the Legislature, as outlined earlier in this chapter, was given not only the ability to remove judges but was also given extensive regulatory power over the Judiciary.
It was because of these elaborate safeguards that Hamilton had declared “a phantom”95 the fear that the Judiciary could mold the laws into “whatever shape it may think proper.”96 He especially considered this fear a phantom because of the congressional power to remove judges by impeachment. As he explained:
This [impeachment] is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the Legislature, would hazard the united resentment of the body entrusted with it while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations [impeachment].97
Unfortunately, Hamilton’s “phantom” has now become incarnate. Yet, in Hamilton’s defense, he never imagined that the Judiciary would try to reinterpret the Constitution without the legislators impeaching any judge who tried; that is, he never imagined that the Legislature would refuse to exercise its own “constitutional arms for self-defense.”
While today’s defenders of judicial activism assert that a judge can be impeached only for criminal acts and not for political usurpations, the Founders emphatically disagreed. For example, Justice James Wilson declared:
[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.98 (emphasis added)
Justice Story agreed:
The offenses to which the power of impeachment has been and is ordinarily applied as a remedy…. are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.99 (emphasis added)
There is much additional evidence. For example, George Mason, the “Father of the Bill of Rights,” explained that impeachment was for “attempts to subvert the Constitution,”100 and Alexander Hamilton declared that impeachment was to be used for “the abuse or violation of some public trust…. [or for] injuries done immediately to the society itself.”101 Constitutional Convention delegate Elbridge Gerry considered “mal-administration” as grounds for impeachment,102 and William Rawle included “the inordinate extension of power, the influence of party and of prejudice”103 as well as attempts to “infringe the rights of the people.”104 Justice Story also listed “unconstitutional opinions” and “attempts to subvert the fundamental laws and introduce arbitrary power.”105 Very simply, impeachment was the recourse when judges intruded on the domain of the other two branches, attempted to disregard public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker.
The Founders saw impeachment as a Legislative tool to maintain the separation of powers and to prevent Judicial encroachments. As Alexander Hamilton explained:
[T]he practice of impeachments [is] a bridle in the hands of the Legislative body.106
Justice James Iredell, nominated to the Supreme Court by President Washington, also believed in using impeachment in this manner. He explained:
Every government requires it [impeachment]. Every man ought to be amenable for his conduct…. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose although he may be a man of no principle, the very terror of punishment will perhaps deter him.107
Justice Story similarly declared:
The provision in the Constitution of the United States [concerning impeachment] … holds out a deep and immediate responsibility as a check upon arbitrary power. They [Congress] must be presumed to be watchful of the interests, alive to the sympathies, and ready to redress the grievances of the people.108
Yet, if such great power resided with Congr
ess, and if, as Hamilton asserted, “the Legislative authority necessarily predominates,” then what check would keep Congress from abusing its power and riding roughshod over the people? George Washington answered this question:
The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period to representatives of their own choosing; and whenever it is exercised contrary to their interest or not agreeably to their wishes, their servants can, and undoubtedly will be recalled.109