The American Bar Association’s theme for Law Day 2018 is “Separation of Powers: Framework to Freedom.” It focuses on the structure laid out in the U.S. Constitution that established the executive, judicial and legislative branches of American government and law. The Constitution also defines the authorities and powers of each branch, how they may interact and how each serves to provide a system of checks and balances on the power of the others.
The annual Law Day, and in the case of the Jacksonville legal community, Law Week, is an opportunity to consider how the separation of powers preserves rights and liberty in the American democratic republic.
Democracy is a great concept that doesn’t work without structural protection. America was the first democratic system that worked long-term, and that’s because of the constitutional structure that divides powers and protects us from electoral swings and the personal whims of those popularly elected. From time to time (especially when our own preferences are reflected in the popular will), we forget about the value of the separation of powers and wonder why we just can’t just change the country immediately, or take it back to some nonexistent romanticized past. Looking back historically, we can see times when our nation could have easily followed the direction of other countries that swung too quickly toward the latest political trend and see how we benefited from the division of powers that kept us from dashing in directions that would have upended our society. Our country is now holding its breath, hoping that those same institutional protections will protect us from the latest flavor of democratic populism, and so far it appears that we are weathering the storm. I think that we will ultimately be successful and history will once again credit the separation of powers structure as the reason for that success.
The framers of the Constitution understood that a requirement for separation of powers among the branches of the federal government was essential to the operation of the rule of law. The Constitution deliberately provides each branch with authority to have a “say-so” about the operation of the other branches. This beautiful governmental system of separation of powers and checks and balances limits the inherent risks of any one branch of the government attaining tyrannical power over “we the people.”
The Constitution introduced a document drafted by men that recognized that the God-given rights of every individual must be held in higher esteem than the government’s prerogative to enact burdensome laws that govern them. Yet, the American rule of law system is not a flawless one. Our legal system operates by the work of flawed people who hold imperfect information and interpret the same under the cloud of various human biases. The American rule of law has no superiors among its counterpart justice systems because the rights of individuals to life, liberty and the pursuit of happiness matter.
Cautious adherence to the separation of powers is essential to the rule of law. The public only trusts a judicial branch that is not beholden to popular sentiment or partisan politics and instead consistently adheres to the Constitution and respect for binding precedent. Having spent time in countries with an overly powerful executive branch or an overly weak judicial branch, from my perspective, freedom is only ensured by the separation of powers.
Liberty requires limited government. The Constitution prevents one person or one party from consolidating power. An independent judiciary, a bicameral legislature, a president elected separately from Congress and the concept of federalism create checks and balances that prevent a majority from abusing the rights of a minority. Without this constitutional structure, the Bill of Rights would become a “parchment guarantee.”
History has shown that if you give any one person or any one group unfettered power, the results can be detrimental. The spirit of the separation of powers has ensured that each branch of government has someone to answer to and not trample on the rights of our citizens.
The checks and balances that are in place are crucial to prevent a majority party from running our country as a dictatorship. Without these in place, our rule of law would be meaningless and corruption would be much more apparent than it already is.
