Legislative department required precautions some of

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legislative department required precautions some of which are not, theoretically speaking, necessarily connected to the doctrine of separation of powers, the most notable of these being bicameralism and life tenure for judges. A blending of powers, principally that providing for the presidential veto, was also deemed essential to prevent a tyrannical concentration. Because of these provisions, intended to maintain separation and to keep the departments on an even keel, the Constitution is commonly referred to as a “balanced Constitution.” Only through a blending of powers, the division of legislative authority, and the strengthening of the executive and judicial branches, could the separation of powers serve the ends – e.g., rule of law, ordered liberty, stability – the Framers sought. Certain aspects of the Founders’ understanding of the separation of powers should be keep in mind in light of both subsequent constitutional and political 30. Ibid., 57/297. 271
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developments and the modern understanding of the constitutional division of powers. In the first place, contrary to modern belief that the founders established “three equal and coordinate branches” of government, they regarded Congress to be the predominant branch. This understanding is evident from the Convention deliberations, The Federalist , and the ratification debates in the several state conventions. 31 Moreover, reading the Constitution with an innocent eye reveals as much. Here we find provision for Congress in Article I, wherein virtually all the powers delegated to the national government are set forth. Significantly, Congress also has the authority to police and control the other branches. It can, for example, impeach and remove the president and judges, override presidential vetoes, and control the appellate jurisdiction of the Supreme Court. To be sure, in most cases extra-majorities are required in both legislative chambers for these and like actions, but even so, the judiciary and executive have no equivalent powers or authority over Congress. A second observation, which also runs counter to much of the contemporary understanding, is that the term “checks and balances” applies in only a very special sense to the American system of separated powers. “Checks and balances,” for instance, have traditionally been associated with “mixed” regimes wherein, not unlike the British system at the time of the American founding, the institutions of government represent the dominant classes or interests within the society. Yet, what the Founders did was to adjust the doctrine of separation of powers to the principles of republicanism which required that all departments, either directly or indirectly, would ultimately be accountable to the electorate.
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  • Fall '16
  • carol
  • Separation of Powers

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