Separation of Powers

State constitutions repudiated the organizing principle of English constitutionalism, the theory of mixed government. This meant that the branches of government mixed together the three important social estates (monarchical, aristocratic, and democratic), guaranteeing each a voice that would check the other. Montesquieu explored the doctrine in Spirit of the Laws ( 1748), a work based on observation of the English government and society. He argued that a separation of the branches of government

-62-

would prevent any one of them from becoming tyrannical, but he continued to join this separation to the traditional notion of social estates rather than governmental function exclusively.

The colonial experience roughly paralleled Montesquieu's theory of separation of powers. The monarchy consisted of the executive authority through the colonial governor; the aristocracy of large landholders filled the upper house of the assembly; and the democratic elements controlled the lower house. The fate of the judiciary reveals the fuzzy nature of this separation doctrine. It was subordinate to the legislature; in many colonies the upper house (often acting with the governor) functioned as the highest court, while the lower assembly discharged apparently judicial functions, such as granting divorces and settling local disputes. The judiciary exercised no coercive powers over the other branches, and it had little in the way of protection against encroachment by these branches on its prerogatives.

Still, in every colony, the sharing and limiting of power based on separation of governmental functions had real vitality. The broad distribution of property among the colonists and great distance from England attenuated the social model of estates upon which mixed government rested. The picture was far from uniform, however; something resembling modern separation theory was stronger in some colonies, such as Massachusetts and Virginia, than in others, such as Georgia and Rhode Island.

The emergence of popular sovereignty and republicanism prompted the framers of state constitutions to formulate a modern scheme of separation of powers. In a democratic republic, no social divisions justified the division of governmental power: by definition, the sovereign "people" subsumed all social groups.

The new state constitutions replaced mixed with balanced government and they "disembodied government from society." ⁴² Balanced government abolished the concept of social estates; instead, each branch was identified by its function--administrative, lawmaking, and judging--not its social constituency. The switch to balanced government also meant that the judiciary emerged independent and coequal with the executive and legislative. Behind this change was the notion that the people could and should be represented in each of the branches. Separation of powers nicely complemented the theory of popular sovereignty, because it made the people, as a constituent power, into a force that "remained outside the entire government, watching, controlling, pulling the strings for their agents in every branch or part of government." ⁴³ In theory at least, no single branch could, separated and checked as it was by the others, claim sufficient authority to become tyrannical.

True separation was achieved only gradually. The state judiciaries, once again, provide the best evidence. Those state constitutions proclaimed before the Declaration of Independence (e.g., New Hampshire, South Carolina, and New Jersey) had incomplete modes of separation, especially where the judiciary was concerned. Virginia in June 1776 became the first state to define the judiciary as a distinct third branch of government, and five other states followed this radical scheme. Even in these states the legislature retained an element of accountability over the courts, because judges of the highest appellate courts received their offices through legislative election. Most states, however, encouraged judicial independence by providing tenure during good behavior, something that English judges had enjoyed but colonial judges had not.

Separation of powers and balanced government granted the judiciary an expanded role in the implementation of the rule of law. Yet the highest appellate courts of the

-63-

new states exercised their new powers warily, as the early history of state judicial review suggests.

Judicial review is the practice by which courts are empowered to strike down on constitutional grounds legislative and executive acts. Although a source of controversy, judicial review today is largely taken for granted. Such was not the case during the first two decades of state constitutional history, when state courts struck down fewer than a dozen legislative measures. The most famous of these were the cases of Trevett v. Weeden ( 1786) in Rhode Island and Bayard v. Singleton ( 1787) in North Carolina. In the former, the Rhode Island Superior Court came close to declaring a recently passed paper-money force act unconstitutional because it violated property rights guaranteed under the old charter. In the latter, the North Carolina Supreme Court actually declared unconstitutional an act that denied "every citizen . . . a right to a decision of his property by trial by jury." ⁴⁴ As few in number as they were, these early cases demonstrated that the new American scheme of constitutionalism rested on the simple premise that legislative power had to be checked by the judiciary as well as the electorate.

The legislatures retained preeminence within these new balanced state constitutions. The Pennsylvania Constitution of 1776 was the most "radical" manifestation of this ascendancy. It provided for a plural executive, a unicameral legislature, and a "supreme court of judicature" whose judges served seven-year renewable terms. The emphasis on legislative authority appeared in every other state constitution, although no other state went quite so far as Pennsylvania. The technical parliamentary powers acquired over the course of the colonial struggle with England and with royal executives in each of the colonies meant that the new legislatures had secure control over their internal operations. In the nineteenth century, however, judicial and executive power steadily expanded at the expense of legislative authority.

Date: 2015-01-29; view: 799