Separation of powers

United States

 * In framing a government. . . you must first enable the government to control the governed and in the next place, oblige it to control itself.


 * –Federalist, No. 51

The hard-won power of the English Parliament to control the excesses of the Throne was for the Founding Fathers a valuable heritage. As structured by the Constitution, political power and function in the Federal Government is separated among three distinct and mutually dependent branches &mdash; the legislature, the executive branch, and the courts. Moreover, a set of institutional and procedural checks was created to make it difficult for one branch to act rashly or independently of the other two branches.

The power balance in the U.S. Government has shifted many times, sometimes by a President’s initiative, at other times by Congress’ reassertion of its powers or duties, at yet other times by the intervention of the courts. War and technological change have been two dramatic factors in changing the locus of power between the President and Congress. Both have tended to pose threats to public safety that required swift, decisive action based on expert knowledge, and thus to shift responsibility toward the Executive rather than the more deliberative Legislative Branch of Government. War has been the greatest promoter of presidential power, but until World War II, this was usually temporary. More recently, the power, the range, and the speed of modern weapons have favored a continued shift in power toward the Presidency.

As technological advances give rise to constitutional challenges, moreover, the powers exerted by the Supreme Court are likely to increase. Never before in our history have so many aspects of daily life been subject to litigation, both over the respective powers of the President and Congress and over the relationship of government to the individual. It is a unique feature of American democracy to rely so extensively on courts to monitor the authority of elected branches of government. Exercise of this power will likely ebb and flow as it has in the past, but it is nonetheless certain that technological change will place new and continuing demands on the courts to interpret the fundamental charter of American government.