Separation of Powers | Constitution 101

0:00[Music] today we're going to talk about the separation of powers if that sounds dry let's remember that the founding generation thought that the separation of powers was the single most important part of the constitution because it prevents the president from becoming a king or a tyrant so let's start with some definitions separation of powers refers to the fact the constitution distributes power among the three branches of government there's a legislative branch congress an executive branch the president and a judicial branch headed by the supreme court but the ultimate power resides in we the people the constitution also sets up a system of checks and balances it grants each branch of government the power to check abuses or excesses by the other branches and it further divides power through the system of federalism which sets out

1:04distinct and limited spheres of authority for the national government and the states separation of powers checks and balances and federalism why did the founding generation believe that this complicated system which divides power between and among the national government and the states was the most important part of the constitution because in their view the constitution founded on separation of powers was the only way to protect the unalienable rights promised in the declaration of independence the only way to ensure that the president couldn't become a tyrant or king in other words unlike the king of england or the president of russia the president in america doesn't hold all the power we live under a government of laws not

1:49of one man because power is separated between and among the president congress and independent judges and divided between the federal government and the states only by ensuring that all power isn't concentrated in the hands of one man or one woman can a constitution prevent a president from becoming a dictator without the separation of powers the tyrannical war crimes of king george iii or vladimir putin are the result so that's why the topic today is important now where did the founders get their idea that the separation of powers was the most important protection for individual liberty and natural rights today we're going to talk about three sources montesquieu's the spirit of the laws john adams thoughts on government and james madison's federalist 51. let's start with montesquieu's spirit of

2:44the laws or charles louise secondard that was his name and he wrote the spirit of the loss in 1748. he was described in the federalist as the celebrated montesquier he was the most cited author in the entire period stretching from 1760 to 1800 um at least the most cited secular author and that's why we should pay close attention to it so what does the spirit of the law say here's a really relevant passage which sums up montesquieu's belief in the importance of the separation of powers montesquieu says democratic and aristocratic states are not in their own nature free political liberty is to be found only in moderate governments and even in these it's not always found it is there only when there is no abuse of power but constant experience shows us that every man invested with power is apt to abuse it and to carry his authority as

3:44far as it will go is it not strange though true to say that virtue itself has need of limits so moses is saying don't just rely on the possibility that the king or the congress will be virtuous he says to prevent this abuse it is necessary from the very nature of things that power should be a check to power a government may be so constituted as no man shall be compelled to do things to which the law does not oblige him nor forced to abstain from things which the law permits and then montesquieu talks about the need to separate the legislative executive and judicial power he says in every government there are three sorts of power the legislative the executive in respect of things dependent on the law of nations and the executive in regard to matters that depend on the civil law which mazes here calls the

4:34judiciary power so the legislative executive and judicial power are the three uh powers and mata says when the legislative and executive powers are united in the same person or in the same body of magistrates there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner again there's no liberty if the judiciary power be not separated from the legislative and the executive or adjoined with the legislative the life and liberty of the subject would be exposed to arbitrary control for the judge would be then the legislator were it joined to the executive power the judge might behave with violence and oppression there would be an end of everything where the same man or the same body whether the nobles or of the people to exercise these three powers

5:25that have enacting laws that of executing the public resolutions and of trying the cause of individuals so you couldn't have a clearer defense of the separation of powers now we see why the framers talked about it repeatedly because the celebrated montesquieu had emphasized the importance of the separation of powers and note that musketeer puts special emphasis on the independence of judges i was in ukraine a few years ago after the revolution of dignity of 2014 and ukraine was drafting a new constitution and when i asked the ukrainian constitution makers what element they thought was most important they said an independent judiciary in separation of powers they too were channeling montesquieu as was john adams who's our next author early in 1776 john adams wrote his thoughts on government which was a full

6:19elaboration of the principles that were at the center of his constitutional vision and those principles were that happiness is the end of government consent the means and sovereignty of the people the foundation um adams is channeling aristotle he had very clear and consistent views and aristotle had warned in his politics that governments based entirely on one part of society would degenerate into a corrupt form aristotle identified three different forms of government based on the one the few or the many monarchy which is based on the rule by the one would degenerate into tyranny aristocracy which is based on the rule by the few would degenerate into oligarchy and what aristotle called polity based on the rule of the many would degenerate into democracy adams agreed with all this until the end

7:09of his life and he wrote to thomas jefferson the fundamental article of my political creed is that despotism or unlimited sovereignty or absolute power is the same in a majority of a popular assembly an aristocratical council an oligarchical punto and a single emperor so adams is saying we've got to have separation of powers because if you put all the power in one body tyranny will be the result he worked out his thoughts on the separation of powers in thoughts on government there he says that the very definition of a republic is an empire of laws and not of men as good government is an empire of laws how shall your laws be made atoms like montesquieu warns about not putting all the power in one body he says in a large society inhabiting an extensive country it is impossible that the whole should

8:02assemble to make laws so the first necessary step is to depute power from many to a few of the most wise and the good it's envisioning some kind of elected assembly and he says that annual elections are very important but then he worries that you don't want to have a single assembly a representation of the people in one assembly obtained a question arises whether all the powers of government legislative executive and judicial shall be left in this body and adam says no i think a body a people cannot be long free nor ever happy whose government is one assembly my reasons for this opinion are as follows he's very clear he says a single assembly is liable to all the vices follies and frailties of an individual subject to fits of humor stars of passion flights of enthusiasm partialities of prejudice and consequently productive of hasty

8:52results and absurd judgments you can't put it more plainly than that so how are we going to avoid hasty results and absurd judgments adam says to avoid these dangers let a distant assembly be constituted as a mediator between the two extreme branches of the legislature that which represents the people and that which is vested with the executive power so adam says that the representative assembly elected by the people should elect by ballot a distinct assembly which we'll call a council which should be able to veto the decisions of the popular house and then these two bodies thus constituted let them unite and by joint ballot choose a governor the dignity and stability of government in all its branches the morals of the people and every blessing of society depend on the upright and skillful administration of justice adam says so

9:39after we've created this three-part body the popular house the more um selective house and the governor adams says the judicial power ought to be distinct from the legislative and executive and independent upon both that it may be a check upon both as both should be checks upon that the judges therefore should always be men of learning and experience in the laws of exemplary morals great patience calmness coolness and attention and to that end they should hold estates for life in their own offices or in other words their commission should be during good behavior so like montesquieu unlike those ukrainian constitution makers adams is emphasizing the importance of independent judges holding uh office uh for life life tenure uh short of impeachment for

10:27bad behavior now adam's idea of a house electing a senate and the two of them electing a governor was a little complicated so when it came to drafting a constitution the framers instead chose a house elected by the people a senate elected by state legislatures and a president elected by the electoral college just a little bit less complicated but based on the same idea and in federalist 51 which is our third text for today madison explains why the title of federalist 51 is the structure of the government must furnish the proper checks and balances between the different departments you can't get clearer than that and in this powerful essay madison explain the reasoning behind the structure of the new national government here's this wonderful famous and important passage this is madison's words

11:16ambition must be made to counteract ambition the interest of the man must be connected with the constitutional rights of the place it may be a reflection on human nature that such devices should be necessary to control the abuses of government but what is government itself but the greatest of all reflections on human nature well what did madison mean by that in this key passage he's explaining how the constitution structure is designed to check the powers of the elected branches and protect against possible abuses by representatives and for madison the solution is a combination of separation of powers and checks and balances with the separation of powers the framers divided the powers of the national government into the three separate branches the goal is to prevent the

12:04president from becoming a king and to prevent any single branch of government from becoming too powerful at the same time each branch of government is also given the power to check the other two branches that's the key idea of checks and balances and then madison tells us what he means by government being a reflection on human nature these are wonderful madison words again he says if men were angels no government would be necessary if angels were to govern man neither external nor internal controls on government would be necessary but as madison and his other framers knew men are not angels but they're also capable of some virtue of some self-restraint he's we're neither angels nor uh devils that's why madison says in framing a government which is to be administered by men over men the great difficulty

12:54lies in this you must first enable the government to control the government and then the next place to oblige it to control itself so now we see why the separation of powers is so urgently important and really so interesting as well the framers came up with a system in which the branches are meant to compete with each other to ensure that no single branch becomes too powerful that's the core of federalist 51 and that's why madison who of course was a primary drafter of both the constitution and the bill of rights thought that the separation of powers is more important for protecting liberty even than a bill of rights and even more important than a written constitution itself after all lots of countries had today have bill of rights and written constitutions including russia

13:42russia has a constitution and the russian constitution has many inspiring words but the words of the russian constitution are empty words and its soaring promises are a lie because in russia the president is a tyrant who holds all the power in russia there is no separation of powers george washington recognized the danger that america would go down the same path of nearly every government in history where a president or a general under the guise of being supported by the people had ended up seizing all the power and becoming a tyrant at newburgh in 1783 when washington soldiers threatened a mutiny because they hadn't been paid washington appealed to their virtue and assured them of his own in emphasizing that he would never seize all the power these are washington's words to his

14:33soldiers let me conjure you in the name of our common country as you value your own sacred honor as you respect the rights of humanity and as you regard the military and national character of america to express your utmost horror and detestation of the man who wishes under any species pretenses to overturn the liberties of our country and who wickedly attempts to open the floodgates of civil discord and deluge our rising empire in blood for washington and the founding generation and for millions of people today who are fighting for freedom across america and around the world the way to protect rather than to overturn the liberties of our country is the separation of powers which ensures a government of laws and not of men