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Basic Constitutional Concepts
power of Congress to determine the size of the courts and to limit the
appellate jurisdiction of both the Supreme Court and inferior Federal
courts.
Similarly, the executive exercises some legislative powers. The presidential veto, for example, is a legislative power that permits the President to take part in the law-making process. The President exercises a judicial power, on the other hand, when he pardons a person convicted of
a Federal crime.
The judiciary, in turn, possesses legislative power through judicial review, and enjoys some executive power through its authority to appoint
clerks and other court personnel.
Each branch, it may be seen, is independent of the others, although the
independence they possess is not absolute.
Such is the theory of the separation of powers as understood and applied in 1787. Madison and other Framers expected quarrels to break
out from time to time between branches of government. Indeed, they
counted on such quarrels. Why? Because jealousy and hostility among
the chief divisions of the Federal government would prevent the three
branches from combining in any scheme to infringe upon the powers of
the several States or to diminish the liberties of citizens.
In other words, Madison and his colleagues meant to avert the rise
of an oligarchy (the rule of a few rich and powerful men) or of a tyrant
(an unlawful single ruler) by making it almost impossible for any man
or faction to secure the simultaneous cooperation of the legislative, executive, and judicial branches. Thus the Constitution would be guarded
against subversion by the ambition and the vanity of the men who
respectively belonged to the legislature, the executive force, and the
body of judges. ‘‘Ambition would counteract ambition,’’ as Madison
put it.
The principal men in Congress would tend to resent the power of the
presidency and to assert the claims of Senate or House to national leadership. The President, for his part, would cherish his powers jealously
and would vigorously repel attempts of the Congress to dictate executive policies. And the Supreme Court would maintain a stern defense of
its prerogatives, rebuking both Congress and President from time to
time.