<<  <  >  >>

Page 6

The first thing, that strikes us, upon the

slightest survey of the national Constitution,

is, that its structure contains a fundamental

separation of the three great departments of gov-

ernment, the legislative, the executive, and the

judicial.  The existence of all these departments

has always been found indispensable to due energy

and stability in a government.  Their separation

has always been found equally indispensable, for

the preservation of public liberty and private

rights.  Whenever they are all vested in one

person or body of men, the government is in fact

a despotism, by whatever name it may be called,

whether a monarchy, or an aristocracy, or a

democracy.6

Because 200 years have passed since the ratification of

the Constitution, modern-day Americans tend to forget that

the Constitution of 1787 represented a bold new experiment

in political science.  In England, the balance of power

would shift back and forth between the king and

Parliament.  The judiciary was not known as a separate

power; it was in both theory and practice a part of the

executive.7   While it is true that the Framers of the U.S.

Constitution incorporated those aspects of the British

Constitution that they deemed worthwhile, the separation-

of-powers principle and an independent judiciary were dis-

tinctively American innovations.8

To guard against the danger of one branch's seizing

the powers and prerogatives of the others, the Framers

devised a sophisticated series of "checks and balances."

Congress has the power to pass and repeal laws, but the

president can check those measures by vetoing bills.

Congress can, in turn, override a veto if it can muster a

two-thirds vote.  The Supreme Court has the power of judi-

cial review, but the president has the power to nominate

judges and justices and Congress can confirm or reject

executive nominations.  The House of Representatives has

the power to impeach executive and judicial officers who

engage in misconduct, but the Senate tries all impeach-

ments and the constitutional threshold for conviction is

high--concurrence of two-thirds of the members present.

By equipping each branch with powers of self-defense, the

Framers believed they could prevent the concentration of

governmental power in any one branch.

The constitutional system of checks and balances also

operates within the criminal justice system.  At a general

level, of course, the legislature passes criminal laws,

the executive enforces the law, and the judiciary inter-