Why separation of powers matters: Thoughts from Madison, Montesquieu, others

Victor Joecks


Why is the separation of powers essential? I offered my thoughts yesterday, but since everything I wrote was just an attempt to capture the brilliance of Madison, Jefferson, Montesquieu and others, I wanted to share with you some of their quotes on why the separation of powers is so important. All emphasis is added.

James Madison in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Montesquieu on the separation of powers:

There is as yet no liberty if the power of judging be not separated from legislative power and the executrix.

The U.S. Supreme Court in O’Donoghue v. United States, 289 U.S. 516 (1933).

The Constitution, in distributing the powers of government, creates three distinct and separate departments-the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, Springer v. Government of Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480; namely, to preclude a commingling of these essentially different powers of government in the same hands.

James Madison in Federalist 51:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.

Thomas Jefferson in Notes on Virginia Q.XIII, 1782:

[A very capital defect in a constitution is when] all the powers of government, legislative, executive and judiciary result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.

Nevada Supreme Court in its 1967 Galloway v. Truesdell decision:

The separation of powers; the independence of one branch from the others; the requirement that one department cannot exercise the powers of the other two is fundamental in our system of government.

Montesquieu has recited the reasons for the desirability of having the governmental powers separate. In City of Enterprise v. State, 69 P.2d 953 (Ore. 1937), he is quoted: “* * * there can be no liberty * * * if the power of judging be not separated from the legislative and executive powers. * * * Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator: Were it joined to the executive power the judge might behave with all the violence of an oppressor.”

Madison in Federalist 48:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

George Washington in his 1796 farewell address:

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

Is the separation of powers essential and should it be vigorously defended? NPRI sides with, to name only a few, Madison, Montesquieu, the U.S. Supreme Court, Jefferson, the Nevada Supreme Court and George Washington in saying, “Yes!”

For more information and to stay updated with the latest developments related to NPRI’s Separation of Powers lawsuit, as well as to access copies of the relevant documents and court filings, please visit NPRI.org/Separation-of-Powers.