A Separation of Powers

The Framer’s motivation to create a separation of powers were both reactionary to the revolution of Great Britain, and proactive to forming a righteous structure of government. This dialectically synthesized a pluralistic landscape; fundamentally rooted in a Biblical system. These foundational influences are evident from its subsequent translation unto the American courts; as initial “[i]ncreases in population led to a higher volume of litigation,” (Neubauer & Fradella). The judiciary has ascended as beacon of justice throughout the context of American history. By the 1780s, state legislatures had “become the main source of tyranny and injustice in society;” thus, “Americans began looking to the once-feared judiciary as principal means of restraining these wild and rampaging popular legislatures,” (Wood, G.; Scalia, A., p. 52).

The Separation of powers doctrine was further exemplified as the national population expanded; thus, new courts were created to cover these expanding jurisdictions, (Neubauer & Fradella). Thus the Framer’s developed a “separation of governmental powers” (Neubauer & Fradella). This was a significant departure from the initial government, whereby “the same governmental body often held executive, legislative, and judicial powers,” (Neubauer & Fradella). As noted by the Heritage Foundation these “three independent branches—legislative, executive, and judicial” were formed “to make, implement, and interpret the law respectively,” (Heritage). Its related principles “[contemplate] some overlap in the branches’ performance of government functions;” allowing independence and relies on some interdependence for maximum efficiency, (Constitution).

The Court’s Role. In the doctrine of separation, the court’s role is to interpret the law, and to state what the words ought to mean. Black’s Law Dictionary defines the term Judicial Branch as “[t]he division of government consisting of the courts, whose function is to ensure justice by interpreting, applying, and generally administering the laws,” (Garner, B., p. 1011). The judiciary duties thereby include making just—sometimes unpopular—decisions, negating Congressional or executive influence. Additionally, the role of the judiciary is “to revise statutes,” (Scalia, A., p. 22).

Alexander Hamilton enumerated the distinctions between the branches; writing, “[t]he executive not only dispenses the honours, but holds the sword of the community;” while “the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated;” delegating the jurisdiction of the Judiciary Hamilton wrote that “the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever,” (Hamilton, A., p. 401). Thus, “there is no liberty, if the power of judging be not separated from the legislative and executive powers,” (Hamilton, A., p. 401).

The Founders separated power as a foundational constitutional requirement due to their previous experiences with arbitrary government. Hamilton advocated his belief in The Federalist No. 84 that “[t]o bereave a man of life” or “by violence to confiscate his estate, without accusation or trial,” would be “so gross and notorious an act of despotism,” it would “[sound] the alarm of tyranny throughout the whole nation,” (Hamilton, A., p. 444). But as Hamilton warned “but confinement of the person, by secretly hurrying him to jail,” whereby “his sufferings are unknown or forgotten,” is a far “more dangerous engine of arbitrary government,” that ought to be prevented, (Hamilton, A., p. 444). Therefore, the courts were distributed regionally, and “a remedy” was implemented for this fatal evil;” the “habeas corpus act,” declared as the “BULWARK of the British constitution,” (Hamilton, A., p. 444).

James Madison acknowledged man’s propensity to abuse power; writing in the Federalist No. 48 that, “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,” (Madison, J., p. 268). Hamilton feared the addition of bill of rights would, writing that “bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous,” (Hamilton, A., p. 445). Moreover, James Madison depicted in the Federalist No. 51 that “it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others,” (Madison, J., p. 269). Thus the Framers were aware that “mankind is fallible and, therefore, that civil government is necessary to restrain man’s evil in society;” and that “government itself should be limited in order to minimize evil within it,” (Heritage).

The Judicial Branch was not immediately unanimously embraced nor accepted; “[t]here was considerable disagreement, however, on the specific form that the national judiciary should take. Article III was one of the most hotly debated sections of the Constitution,” (Neubauer & Fradella). The Framers’ were aware of man’s fallen human condition; rooting the nation’s founding in compromise; as “[t]he conflict between Federalists and Anti-Federalists was resolved by one of the many compromises that characterized the Constitutional Convention.” (Neubauer & Fradella). These actions evidenced the Founding Father’s awareness of the synthetic dangers of unchecked centralized power within any one branch; including that of the judiciary.

God is the only central body of autonomous, omnipotent power and authority. Thus, a separation of power is necessary, as it is consistent with Biblical principles, natural law, and sustainable government. Secondly the separation of power displays that natural law inherently possesses a universally understood concept of morality. In The Federalist No. 78, Alexander Hamilton based the appointment of federal judiciary contingent on good behavior, thereby writing “[a]ccording to the plan of the convention, all the judges who may be appointed by the United States are to hold their offices during good behaviour, which is conformable to the most approved of the state constitutions . . . among the rest, to that of this state,” (Hamilton, A., p. 401). As it is written by the Apostle Peter in the New Testament, “[b]e subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to governors as sent by him to punish those who do evil and to praise those who do good. (1 Peter 2:13, 14; ESV). Peter adds “[f]or this is the will of God, that by doing good you should put to silence the ignorance of foolish people,” (1 Peter 2:15; ESV). Therefore, Christians are to “[l]ive as people who are free, not using your freedom as a cover-up for evil, but living as servants of God. Honor everyone. Love the brotherhood. Fear God. Honor the emperor,” (1 Peter 2:16, 17; ESV). The Founder’s constructed a system in this manner; one that could be formalized as judicial tradition for American posterity; as Justice Antonin Scalia wrote, “[l]ong live formalism. It is what makes a government of laws and not of men,” (Scalia, A., p. 25). Negating the concept of a “living constitution,” Justice Scalia warned that “[b]y trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all,” (Scalia, A., p. 47).

In sum, the structure of the court system lends itself to this separation of powers by fulfilling its obligation as both a body of moral independence; a mindful observer of its concurrent powers; and the acknowledgement of both the executive and legislative, forming its decisions with impartiality with reverence to the posterity of jurisprudence. Neubauer and Fradella note that “[d]iversity was the hallmark of the colonies, with each colony modifying its court system” taking into account “variations in local customs, different religious practices, and patterns of commercial trade,” (Neubauer & Fradella, p. 77). Thus, the separation of powers was the Framers’ doctrine of compromise that endowed American government with exceptional resilience; enumerating the elevation of reverence for citizenry and representation over its own despotic autonomy.

Bibliography

Constitution. (Accessed on January 27^th, 2024). Separation of Powers Under the Constitution. Constitution Annotated. Congress.gov. Library of Congress. https://constitution.congress.gov/browse/essay/intro.7-2/ALDE_00000031/

ESV. 1 Peter 2:13–17

Garner, B.A. (2021). Black's Law Dictionary, Eleventh Edition. St. Paul, MN: Thomson Reuters.

Hamilton, A.; Madison, J.; Jay, J. (2001). The Federalist: The Gideon Edition. Liberty Fund, Inc.

Scalia, A., (1997). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.