Select Page

Legislation
Southern Illinois University School of Law
Kelly, J. Patrick

 
LAP OUTLINE
PART I – Separation of Powers and Checks and Balances (SOP & CAB)
 
 I.                  Background
 
A.     At Federal level the purpose was related to framers fear of gov’t power & tyranny so they sought structural means to limit gov’t power and thus built in a constitutional limit
1.Framers thought tyranny was use of gov’t power by rulers over others for benefit of themselves and not for users of gov’t
2.saw tyranny as taking away liberty.
3.So framers suspicious of gov’t power (feared being reduced to slavery)
 
B.     1 method they agree to avoid tyranny was Montesquieu’s description of the British SOP
1.avoid unhealthy accumulation of too much unchecked power into 1 hand
2.SOP approach
Article I – Leg power to Congress
Article II – Executive Power to President
Article III – Judicial power to Superior court and such inferior courts as congress shall time to time deem necessary
 
C.     But the framers had experience with state constitutions and SOP within those early on right after the Decl. of Independence.
1.Some states had adopted a sort of SOP, so the framers had some experience.
2.Problem was that they discovered the state versions did not work well. 1 branch was always trying to overreach at the state level (usually the legislature)
 
D.     So the framers did not adopt that approach, instead they used an ad mix or mix approach
1.Ad mix placed limits on pure definitional power of each branch and gave to each branch additional powers above and beyond their pure powers to protect from encroachment by another branch.
(i.e. appointment of judges, veto etc.)
2.Some critics attacked this by saying it was not pure SOP
ex: are judges appointment by president & senate confirmation & president’s veto power – obviously there is overlap)
 
E.      Madison answered these criticisms in the Federalist #47-51
1.Said that limits on pure powers and ad mix approach was practically necessary to stop unhealthy accumulations of power and to achieve the very goals that SOP sets out.
Said no one keeps totally separate
Said purpose of some intermingling is to keep at a minimum the practical problem of encroachment of 1 branch into another
Said the very things that critics point to as pitfalls of SOP are essential to prevent what SOP is intended to prevent in the 1

                              iv.                  need interior structures in place (appointment power), control over emoluments (pay), veto power etc – all things purists say are evil
   
II.           CAB actually preserves SOP by preventing tyranny
A.                 Limit pure power of 1 branch (leg purse for ex)
1.                        can’t increase or decrease president’s salary or salary of fed judges
 
B.     Gave branches additional powers above and beyond normal ones to protect encroachment by 1 branch
1.Veto power
2.advice and consent power by senate
3.power to appoint judges instead of electing
 
C.     Purists/Absolutists criticized Fed Con b/c it did not adopt pure SOP like the State Constitutions
1.Madison defended against these critics and said that CAB are necessary to preserve SOP in the 1st place.
2.But Madison’s defense in the Federalist can be argued that it is not accurate b/c it is not in the Con.