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One of the biggest criticisms of the newly proposed plan of government is that it violates the political belief that the legislative, executive and judicial and judicial branches should be separate and distinct. That there is too much mixing of powers in the U.S. Constitution and this threatens to progress to single body holding all the powers and trampling on the rights of the individuals. The great authority on the division of powers is Montesquieu who held the highest regard for the British Constitution in which the branches had many interconnections. The threat, as articulated by Montesquieu, exists when the whole power of one branch is exercised by the same body that exercises the whole power of another branch. This did not occur in the British Constitution and has not been placed into the U.S. Constitution. Each of the state constitutions as well, establishes a division of power that is not totally distinct and separate. There is not a single instance in which each branch has been kept totally separate. New Hampshire's constitution supports the idea that too much mixture is not good, but that some mixture is necessary. Therefore, the separation of powers described by the U.S. Constitution does not violate the principle of free government as it has ever been understood in America.
However, in a government of mixed powers, it is essential that each branch have a degree of control over the others. Most American constitutions have thought it enough protection to simply divide the duties amongst the different branches, but the experience of both Virginia and Pennsylvania provide evidence that dividing duties between branches does not protect each branch from the power of the others. The written demarcation of powers is not enough to prevent the concentration of powers in the hands of one body.
Some have argued that the people should be the final judge when one branch attempts to usurp the power of another, but there are many reasons why this would be dangerous to the government itself. Every appeal to the people to right the wrongs of government implies a defect in that government and reduces the respect the people give to that government. There is great danger in disturbing the public peace by frequently appealing to the public opinion. Finally, an appeal to the people would probably not adjust the imbalance that occurred in the first place.
In a representative republic, the most powerful branch is the legislative. The branches most likely to appeal to the people for usurpation of their powers would therefore be the executive or the judicial. The supporters of the executive and judicial branches be outnumbered by the supporters of the legislative branch, which is by its nature closer in proximity and affections with the people. Theoretically, the legislative branch represents the people's opinions. It is like asking the legislative branch to decide whether the legislative branch has usurped too much power.
Even if public opinion did fall on the side of the executive or judicial branch, it is likely that it is motivated to be there out of the persuasions of a strong political party. In any case, the people will decide more on their passions than on their reason leading to unjust balance of power between the branches.
All of the proposed external solutions to fixing a breach of power within mixed branches of government are ineffective. Therefore, it is necessary to structure the government in such a way that internal forces keep each branch of government in their proper place.
Each branch should have a will of its own and should have as little as possible to do with the appointment of members of the other branches. This is not as possible with the judicial branch, which requires particular qualifications as with the executive and legislative branches. These should be chosen from the authority of the people in different channels. Members of each branch should be as independent as possible from the others in terms of payments attached to their office.
The most important internal check on the power of each branch is to provide necessary personal motives to resist encroachments by the others. However, it is not possible to give each branch an equal power of self-defense because the legislative branch in a representative republic must by its nature be the most powerful. Therefore, this branch ought to be further divided into houses that have different processes for elections, different authorities, and that are not connected with each other.
There are two other characteristics of American society that will prevent the breach of power between the branches of government. In the American case, the authority of the people is first divided into a state and federal system of government, and then is further divided into separate departments at each level. Therefore, there is a double level of security to the rights of the people. It is also necessary to protect one part of society against another part. In America, this happens as a result of the diversity of different classes, regions and interests within the nation. The rights or interests of the minority have little chance of being usurped by a unified majority.
The larger the society, the more likely it is to effectively self-govern. And the righteous changes and mixture of federal ideas inherent in the U.S. Constitution will provide for such a large Republican government that protects the rights of individuals while providing for the well being of the society.
However, in a government of mixed powers, it is essential that each branch have a degree of control over the others. Most American constitutions have thought it enough protection to simply divide the duties amongst the different branches, but the experience of both Virginia and Pennsylvania provide evidence that dividing duties between branches does not protect each branch from the power of the others. The written demarcation of powers is not enough to prevent the concentration of powers in the hands of one body.
Some have argued that the people should be the final judge when one branch attempts to usurp the power of another, but there are many reasons why this would be dangerous to the government itself. Every appeal to the people to right the wrongs of government implies a defect in that government and reduces the respect the people give to that government. There is great danger in disturbing the public peace by frequently appealing to the public opinion. Finally, an appeal to the people would probably not adjust the imbalance that occurred in the first place.
In a representative republic, the most powerful branch is the legislative. The branches most likely to appeal to the people for usurpation of their powers would therefore be the executive or the judicial. The supporters of the executive and judicial branches be outnumbered by the supporters of the legislative branch, which is by its nature closer in proximity and affections with the people. Theoretically, the legislative branch represents the people's opinions. It is like asking the legislative branch to decide whether the legislative branch has usurped too much power.
Even if public opinion did fall on the side of the executive or judicial branch, it is likely that it is motivated to be there out of the persuasions of a strong political party. In any case, the people will decide more on their passions than on their reason leading to unjust balance of power between the branches.
All of the proposed external solutions to fixing a breach of power within mixed branches of government are ineffective. Therefore, it is necessary to structure the government in such a way that internal forces keep each branch of government in their proper place.
Each branch should have a will of its own and should have as little as possible to do with the appointment of members of the other branches. This is not as possible with the judicial branch, which requires particular qualifications as with the executive and legislative branches. These should be chosen from the authority of the people in different channels. Members of each branch should be as independent as possible from the others in terms of payments attached to their office.
The most important internal check on the power of each branch is to provide necessary personal motives to resist encroachments by the others. However, it is not possible to give each branch an equal power of self-defense because the legislative branch in a representative republic must by its nature be the most powerful. Therefore, this branch ought to be further divided into houses that have different processes for elections, different authorities, and that are not connected with each other.
There are two other characteristics of American society that will prevent the breach of power between the branches of government. In the American case, the authority of the people is first divided into a state and federal system of government, and then is further divided into separate departments at each level. Therefore, there is a double level of security to the rights of the people. It is also necessary to protect one part of society against another part. In America, this happens as a result of the diversity of different classes, regions and interests within the nation. The rights or interests of the minority have little chance of being usurped by a unified majority.
The larger the society, the more likely it is to effectively self-govern. And the righteous changes and mixture of federal ideas inherent in the U.S. Constitution will provide for such a large Republican government that protects the rights of individuals while providing for the well being of the society.