The Separation of Powers
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‘‘mixed and balanced’’ Constitution of Great Britain. The solution to the
problem of political tyranny, thought the English, was to distribute the
powers of government among monarchy (the crown), aristocracy (House
of Lords), and democracy (House of Commons), so that each class would
check the advances of the others, thereby producing a ‘‘mixed and balanced’’ government. The idea of a judicial power distinct from the executive, which complicated matters, was added to the equation and popularized by Montesquieu and Blackstone toward the end of the eighteenth
century.
The American achievement was to substitute a functionally divided
system for the ‘‘mixed’’ system, replacing a class-based structure with
one in which all the branches of government drew their authority from
the people. This was first achieved in the revolutionary State constitutions adopted in 1776, that of Virginia being an example: ‘‘The legislature, executive and judiciary departments shall be separate and distinct,
so that neither exercise the powers properly belonging to the other.’’
These first State constitutions also departed from the British model by requiring a complete separation of personnel as well as function, that of
Virginia again being representative: ‘‘nor shall any person exercise the
powers of more than one of them [branch] at the same time.’’
Working without any clear precedents or guidelines, and laboring under the erroneous assumption that an almost pure separation of powers
would achieve the desired result of limited government, the framers of
these first constitutions established powerful legislative bodies but failed
to provide a check and balance system. It soon became apparent that this
was a fatal omission. Throughout the country, the State legislatures became an embarrassment to republican government, not infrequently interfering with the operation of the courts, reducing governors to a condition of subservience, and violating the rights of property. Under the
Virginia Constitution of 1776, ‘‘All the powers of government,’’ complained Thomas Jefferson, ‘‘legislative, executive, and judiciary, result
to the legislative body.’’ His friend and colleague James Madison spoke
for virtually the entire Federal Convention when he stated in Federalist
No. 48: ‘‘a mere demarcation on parchment of the constitutional limits of
the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of gov-