Separation of Powers Revisited in Light of "Watergate"

• Author: Samuel Hendel
• Published date: 01 December 1974
• DOI: 10.1177/106591297402700401
• Date: 01 December 1974
• Subject Matter: Articles

SEPARATION OF POWERS REVISITED IN LIGHT OF
"WATERGATE"
SAMUEL HENDEL
Trinity College
AWYERS
are fond of quoting Justice Holmes’s maxim that &dquo;great cases like
hard cases make bad law.&dquo;’ Watergate, with all its associated crimes and
horrors, makes it imperative that we seek to prevent future presidential
abuses of power. It would be monstrous if we permitted the obligation and the
opportunity to do so to slip out of our hands. But we must beware lest popular
revulsion leads us to the rearrangement and rebalancing of power among the three
branches of government that, in Madison’s phrase, would be &dquo;adverse to the
permanent and aggregate interests of the community.&dquo;2
Not since the Great Depression of the 1930s, which witnessed massive delega-
tions of legislative power by Congress to President Franklin D. Roosevelt and his
abortive attempts to enlarge the Supreme Court, has there been so extensive and
intensive a national debate over the meaning and implications of &dquo;separation of
powers&dquo; as that generated by President Richard M. Nixon’s defense of executive
power and privilege in its name. If the complex issues involved are to be under-
stood and rationally dealt with, it is necessary to give some consideration to the
origins, historic uses and abuses of this constitutional doctrine and, for that matter,
to the balancing of power generally in the American system of government.
The separation of powers principle has ancient roots. Aristotle, for example,
wrote that well-ordered constitutions have three elements, one which deliberates
about public affairs, another, the officers of the state, and the third, the judicial
department.3
3
Much more important, however, in influence upon the framers of our Consti-
tution were Locke and Montesquieu. Writing in defense of the English Revolution
of 1688, Locke maintained that if the legislative and executive powers were in the
same hands, they might suit the making and execution of laws to private advan-
tage. &dquo;And thus the legislative and executive power come often to be separated.&dquo;
Nor, he insisted, might the legislature voluntarily transfer the lawmaking power
to any other hands, &dquo;for it being but a delegated power from the people, they who
have it cannot pass it over to others.&dquo; Delegata potestas non potest delegari.4
The primary fountainhead of the separation of powers doctrine was Montes-
quieu. In his classic Esprit de Lois he wrote:
1
Dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904).
’
The
Federalist, No. 10 (New York: Tudor Publishing Co., 1937), p. 63.
3
Aristotle, Politics (London: George Bell & Sons, 1898), pp. 155-56.
’ John Locke, Of Civil Government (New York: Dutton, 1924), pp. 189, 190-91. Locke
believed, however, that in emergencies, the executive might be justified in the public
interest in acting according to discretion "without the prescription of law and sometimes
against it." At p. 199.
575

---

576
When the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty; because apprehensions may arise, lest the
same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
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 control; for the judge would then be the legislator. Were it joined
to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, 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.5
s
The greatness of the British Constitution he ascribed, in good measure, to its sepa-
ration of powers. And this was true, oddly enough, in the face of the growing
omnipotence of Parliament.6
Jefferson gave his support to this doctrine and in his Notes On Virginia wrote
in 1781 that the concentration of all powers of government &dquo;in the same hands
is precisely the definition of despotic government,&dquo; and this applied to &dquo;an elective
despotism&dquo; as to any other.?
Having won nearly universal acceptance in America in 1787 the doctrine
found expression in the Constitution, as a limitation upon the federal government,
in the opening phrases of Articles 1, 2 and 3 as follows:
( 1 ) All legislative powers herein granted shall be vested in a Congress of the United
States.... (2) The executive power shall be vested in a President of the United States....
(3) The judicial power of the United States shall be vested in one Supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish.8
In the struggle over ratification of the Constitution, it is interesting that both
sides frequently appealed to the authority of Montesquieu and that Madison found
it necessary to defend the Constitution against the charge that it failed adequately
to provide for separation of powers. He cited Montesquieu approvingly but argued
that while the sense in which the preservation of liberty requires that the three
great departments of power should be separate and distinct excluded the exercise
of the whole power of one department by another, it did not require &dquo;that these
departments ought to have no partial agency in, or no control over, the acts of each
other.&dquo;9
That partial agency is constitutionally provided for, by way of illustration, by
the President’s power to propose and veto legislation and that of Congress, or a
branch thereof, to concur in treaties and certain presidential appointments, and to
impeach and remove a President from office. While recognizing the need for some
interconnection and intercontrol, the framers nonetheless attached great importance
5
Baron de Montesquieu, The Spirit of Laws (New York: The Colonial Press, 1900), I,
151-52.
6
The separation of powers doctrine received its most rigid interpretation in the writings of
Blackstone, J. L. DeLolme and David Hume and was adopted in the first Massachusetts
Constitution of 1780 in completely unqualified form in the very language of John Adams.
7

The Writings of Thomas Jefferson (Washington: The Thomas Jefferson Memorial Associa-
tion, 1903), II, 163.
8
The limitation is not made applicable by the federal Constitution to the states. Accordingly,
subject to the provisions of their own constitutions, and in extreme cases, to due process,
states are free to unite governmental powers as they desire.
9

The
Federalist, No. 47, op. cit., p. 331 (Madison’s emphasis).

---

577
to the independence of the three branches of government. In particular, they
anticipated that Congress and the Executive, independently elected and with dif-
ferent terms of office (unlike the situation that prevails in parliamentary systems)
would be a &dquo;means of keeping each other in their proper places
To the framers the federal system, i.e., the division of powers between the
nation and the states, offered an additional opportunity to curb and control power.
To be sure, federalism was not the deliberate and calculated offspring of political
science but the product of history and of economic and social pressures which
barred establishment of a unitary state in the United States. Nonetheless, as Madi-
son wrote, with power &dquo;first divided between two distinct governments and then
the portion allotted to each subdivided among distinct and separate departments,&dquo;
the effect would be that &dquo;the rights of individuals, or of the minority, will be in
little danger from interested combinations of the majority.&dquo; Fragmentation of
power would make &dquo;an unjust combination of a majority of the whole very im-
probable, if not impracticable.&dquo;&dquo;
It all seems very reasonable. A problem remains, however. Will not the frag-
mentation of power and the checks and balances of the Constitution, designed to
curb the &dquo;unjust&dquo; actions of a majority lend themselves to use in the hands of
minorities to curb the &dquo;just&dquo; actions of a majority? With characteristic frankness,
Hamilton conceded that while the checks on majority power designed to prevent
bad laws might curb good ones, he thought it worth the price; because those struck
with the &dquo;inconstancy and mutability in the laws&dquo; will consider &dquo;every institution
calculated to restrain the excess of lawmaking and to keep things in the same state
in which they happen to be at any given period, as more likely to do good than
harm.&dquo;12 In short, as Woodrow Wilson later pointed out, the plan and structure
of the Constitution was &dquo;meant to check the sweep and power of popular
majorities.&dquo;13
The effect of all this was to make freedom from state power, that is, dissocia-
tion, seem the ideal while neglecting to recognize that the power of the state may
be used to enhance freedom as well as curtail it (what is the Bill of Rights, after
all, but the highest form of American law?), to correct injustices and remedy social
ills as well as perpetrate them.
Nonetheless, one needs only to remember the practices of Nazi Germany,
Fascist Italy, Soviet Russia, particularly in the Stalin period, and other authori-
tarian states to realize that there is a vital core of truth in Montesquieu’s doctrine
and the...