How Did the Founders Decide on the Separation of Powers? [No. 86]
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How Did the Founders Decide on the Separation of Powers? [No. 86]


Article 1 says that, “All legislative powers
herein granted shall be vested in a Congress of the United States, which shall consist
of a Senate and a House of Representatives.” And Article 2 begins by saying, “The executive
power shall be vested in a president of the United States.” And Article 3 begins by saying, “The judicial
power of the United States shall be vested in one Supreme Court and in such inferior
courts as Congress may from time to time ordain and establish.” Those three vesting clauses of Article 1,
Article 2, and Article 3 recognize the separation of powers in the US Constitution. And the separation of powers is a deliberate
effort by the framers building on the writings of Montesquieu, who published his Spirit of
the Laws in 1748 or 1749. And Montesquieu argued that there should be
a separation of legislative, executive, and judicial power for the same reason that the
ancient philosophers thought there should be a mixed regime of the one, the few, and
the many. Essentially, Montesquieu, like the ancient
philosophers and like Lord Acton, was concerned with the idea that power corrupts and absolute
power corrupts absolutely. And so he wanted there to be a separation
of powers, so that there wouldn’t be absolute power which would corrupt absolutely. And that’s the underlying reason we have the
separation of powers. And so he decided that instead of separating
power among one person, a few people, and many people, power should be separated functionally
with legislative power being given to one entity, in our Constitution, the Congress,
which consists of two houses, executive power being given to one person, the president,
who’s subject to all sorts of checks and balances, and then judicial power being given to the
Supreme Court and to the inferior courts.

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