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How do we know our government is working as consistently and productively as we can manage? Has trias politica manifested further into other countries and how have they incorporated it into a checks and balances system? What happens when we discover a major gap in our organized system and how do we fix it? We’ll explore these topics by comparing our own separation of powers with our predecessor, modern Great Britain.
The first three articles in the U.S. Constitution describe the powers of the federal government to be split among three separate powers: legislative, executive, and judiciary. Each branch has a separate function, is independent, and may not preempt or arrogate the functions of another branch. However, the branches are complementary. They cooperate with each other for support and prevent one another from attempting to assume or gain too much power. This relationship is described as checks and balances. The framers of the Constitution sought to protect the nation against tyranny with this flexible and elaborate form of safeguards that function each branch to contain and modify the power of one another (Collins).
The checks and balances system in America not only is there to oppress and prevent other branches from gaining too much exclusive power, but it also strengthens them. To put it simply, the legislative branch makes the laws, the executive is expected to enforce the laws, and the judicial branch is responsible for carrying out these laws. Where did this idea of an organized, integrated system originate?
There has been talk about a mixed, or bipartite system as early as ancient Greece, but not until French political philosopher Charles-Louis Montesquieu (commonly referred to as just Montesquieu), anonymously published his work in 1748, “The Spirit of the Laws” appropriately describes the separation of political power into judicial, executive, and legislative to protect political liberty. Montesquieu specified “the independence of the judiciary has to be real, and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked”, and was also considered dangerous (Montesquieu).
This brings into play “judicial review”, the mightiest power, though it is never mentioned in the Constitution itself. Judicial review is the power to supervise the executive and legislative branches when they gain too much authority, strike down these acts and interpret what the Constitution means. This procedure was established from Marbury v. Madison (1803), a landmark case that helped define the boundaries of constitutionally separate judicial and executive branches. This doctrine has drastically impacted our checks and balances system and provides a strong foundation to ensure the system is consistent.
The structure in Great Britain is similar in concept but different to ours when distributing these powers. Parliament is in charge of their legislature, executive power is distributed among the prime minister, the cabinet, government departments & civil services, and the judicial power is held by the courts. However, Great Britain uses a “fusion of powers” in contrast when it comes to their national legislature, parliamentary systems sometimes share, or “fuse” their powers with executive.
For example, in the UK the executive is part of the legislature. The prime minister is the chief executive and sits as a member of the legislature. He also influenced the courts until 2009 when The Supreme Court of the UK was established in Part 3 of the Constitutional Reform Act of 2005 (United Kingdom of Great Britain and Northern Ireland) to strengthen their separation of powers. Though the prime minister plays a vital role in both legislative and executive roles, he either sits as a peer in the House of Lords, or is elected to sit in the House of Commons, and can be revoked by a simple majority vote. Because of the merging and uniting in powers, the UK constitution is often described as having “a weak separation of powers” and more as a “fusion of powers”.
Because of Great Britain’s parliamentary system, they have much more limit in judicial review. There, it’s not a doctrine or a process but rather a challenge to the way in which a decision was made rather than the rights and wrongs of the outcome. Judicial review in the United States works differently and plays an important role in our system to ensure protective rights, consistency, and productivity. The separation of powers has been adapted into many other countries, but Great Britain has uniquely integrated it into their parliamentary system. As time goes on, consequence and law develops, investigates doubts and ideas, and evolves making it easier every day to justify and organize inequalities, disputes, or overlapping areas of law.
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