• Video

How Did the Founders Decide on the Separation of Powers?

Where did the idea for the separation of powers originate? Professor Steven Calabresi outlines how the Founders separated power in the Constitution. The separation of legislative, executive, and judicial powers was proposed by Charles de Secondat, Baron de Montesquieu. Like other philosophers before him, Montesquieu was concerned about how power corrupts those who wield it and the remedy is to divide the power amongst different entities. https://youtube.com/watch?v=_y__snDPYv0


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.

Related Content