Congress, the Court, and the President
THE PRINCIPLE of separation of powers, as set forth by the 17th and 18th century political philosophers Harrington, Locke, and Montesquieu, was a device for limiting governmental power by taking from the monarch his ancient law-making power and vesting it in a legislature. The American development of this doctrine went much further. In place of the simple division into legislative and executive that the European writers wrote of, the American colonies adopted a threefold division, elevating the judiciary to co-equal position and placing all three under a rule of law established by a written constitution.
At the convention of 1787, the device of separation of powers was endorsed with virtual unanimity. "No political truth," Madison said, "is of greater intrinsic value." Controversy, apart from that over the nationstate relationship, concerned mainly the respective powers and the relations between each of the three branches of the national government. Because of the predominance in the states of the legislative branch and the demonstrated tendency of most state legislatures to favor rural and small propertied interests rather than the wealthy and commercial classes, members of the convention deliberately strengthened the presidency and the independent judiciary at the expense of Congress. In spite of their success, Madison in The Federalist, No. 48 still felt obliged to warn against the pretensions of the legislature, and emphasized the constant need to check its "ambition."
The federal Constitution contains no specific declaration concerning separation of powers. The principle is derived from the statements that begin the first three articles: (1) "All legislative powers herein granted shall be vested in a Congress of the United States"; (2) "The executive power shall be vested in a President of the United States"; (3) "The judicial power shall be vested in one Supreme Court and in such inferior courts as the Congress shall . . . ordain and establish." From this separa-