Opinion: Don't Tread on Me, 0516 KSBJ, 85 J. Kan. Bar Assn 5, 31 (2016)

AuthorNick Badgerow, J.

Opinion: Don't Tread on Me

Vol. 85 J. Kan. Bar Assn 5, 31 (2016)

Kansas Bar Journal

May, 2016

The Separation of Powers Doctrine and the Need for a Strong Judiciary

Nick Badgerow, J.

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication.


The United States Constitution, the blueprint for the new Government of the United States of America, was a bold experiment, one never attempted before: to form a union of states with disparate interests, and unite them for the common good; identifying and reserving to the federal government certain national powers, while allotting to the states those powers not necessary to the common, national welfare. The Constitution is an inspired document, drawing on the best of the past, while looking forward and drawing the map to a bright future.

And the Constitution has remained vital because it is a living document, one whose interpretation evolves with the society it governs, and this evolution is its strength. It bends instead of breaking.

The most important aspect of the Constitution is the separation of powers, the establishment of three separate but equal branches, each with checks upon the other two, and balanced by powers vested in the other two. Keeping the branches separate in identity, but equal in power, is a necessary element of the stability of the government which rests upon those branches. And when one branch is made subservient to the other two, the imbalance threatens the very survival of the society which depends on them.

As citizens, each person plays an important role in recognizing the importance of this balance, and in preserving it. Thus, challenges to the independence of the judicial branch should be foreseen and addressed, to preserve that independence and the equality of the judicial branch with the executive and legislative.

A Bold Experiment

Every American school student knows the basic history of our Nation's birth, as well as the aims and goals which drove the Founding Fathers to the Revolution: they sought independence from the monarchy, along with the right of self-government, a representative (and not a remote) government, and a clear relationship between taxation of the governed and benefits derived from the proceeds of that taxation.

In that connection, and in making the unprecedented step of declaring independence from the British government, reasons were cited in a public Declaration of Independence, as a justification not only to the King and Parliament, but also to the World, to explain the reasons for the step by which the child declared its independence from the parent. And the World watched.

And then, after its shocking military success against the World's greatest army, this fledgling nation had to create a governmental structure out of whole cloth. And the World watched.

A New Government

And so, under the scrutiny of both the parent so recently and violently discarded, as well as the rest of the concerned monarchies of the World, America's founders set about to form a federal government, a combination of states. The founders were concerned about federal power eclipsing the rights and powers of the individual constituent states (which after all had to ratify the thing).

And one thing they knew for sure, they did not want to copy Britain, with a powerful monarch, with its Parliament that served at the pleasure of the King, and a Judiciary which was appointed by, and answerable to the King. This new government would demonstrate its independence by being different.

Men of Faith

The authors of the Constitution were men of faith, familiar with Scripture and asking a Supreme Being for guidance. They were therefore likely familiar with this declaration from the Book of Isaiah:

For the Lord is our Judge, the Lord is our Lawgiver, the Lord is our King; it is He who will save us.1

In this simple recognition can be found the roots of three separate, different, but powerful attributes of man's Maker:

God as Judge - exercising judicial temperance and mercy while interpreting the law; God as Lawgiver - exercising the right and omnipotent power to make the law; and God as King - exercising executive control to apply and enforce the law.

Men of Learning

The Founding Fathers also were well learned. Of course, they were familiar with the writings of John Locke and Baron de Montesquieu. In his Two Treatises of Government, Locke had written that men are naturally free and equal[2] (a sentiment echoed in the Declaration of Independence), and because they are free, the establishment of government is a social contract, by which government is established by the consent of the governed.3

And hence it is evident that absolute monarchy, which by some men is counted for the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil government at all.4

Locke identified the legislative branch as that arm which makes the laws, and the executive branch as that arm which enforces the laws; he made little mention of the judicial branch ("magistrates"). However, Locke strongly warned against allowing legislative power to proceed unrestrained.5

The Founding Fathers were also well aware of the writings of Baron de Montesquieu, who had more recently authored The Spirit of Laws.6 In that volume, Montesquieu described the concept of governmental power spread among three equal but differing branches of government, tracing the history of that concept as far back as the Roman Empire after the Caesars.7 Montesquieu recognized and denominated these branches as the Executive, the Legislative, and the Judicial.

The three powers were there distributed in such a manner, that the people were the legislature, and the king had the executive, together with the judiciary, power; whereas, in modern monarchies, the prince is invested with the executive and legislative powers, or, at least, with part of the legislative, but does not act in a judiciary capacity.

In the government of the kings of the heroic times, the three powers were ill-distributed. Hence those monarchies could not long subsist.8

Montesquieu, this progenitor of our liberty, because of this lesson of history, emphasized the importance of a separation between these three separate but equal branches, particularly as it relates to the judicial branch: Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul [sic]; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.9

Further, the power of these three branches must be of relative equality, and separate from each other. Thomas Jefferson later echoed Montesquieu's point - that each branch must be independent of each other: Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action.10

Further, James Madison made the same point in his Federalist No. 51: [T]he great security against a gradual concentration of the several powers in the same [branch] consists in giving to those who administer each [branch] the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the [office].11

So, the Founding Fathers were doubtless aware of Locke's and Montesquieu's writings about the separate functions of government and the need for independence among those functions. They were also keenly aware of the failings of the parliamentary monarchy under whose thumb they had only so recently suffered and from which they had more recently set themselves free. And, of course, they were aware that the thirteen states and the World were watching.

These representatives of the thirteen former colonies decided to try something bold and different, to create a government based on a document with firm principles, based on lofty aspirations, and to make the document subject to amendment as times changed - if that amendment were relatively difficult. They wanted to avoid repeating history by imposing a monarchy. And they wanted to avoid civil war or the dissolution of the union. So, as they adopted this bold and unique Constitution, following Montesquieu's principle of "trias politica," three equal branches covering the separate functions of government, all acting in concert to influence each other through checks and balances, while preserving their own independence.12

Legislative Branch

Under this trias politica, the legislative branch "makes" the laws, the executive branch "enforces" the laws, and the judicial branch "interprets" the laws.13

Thus, under Article I of the United States Constitution: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.14

Article I then follows with certain enumerated acts permitted to the legislature, such as taxation, borrowing, regulating commerce, raising an army and navy, declaring war...

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