The Separation of Powers: The Constitution’s Lodestar of Liberty

Is the regime established in the Constitution today a help or a hindrance to defenders of individual liberty?

The Constitution is seen by some as facilitating oppression by not adequately protecting us from those forces – those institutions within society that ignore us or seek to devalue us.  Others see it not as facilitating oppression, but as too weak to stop oppression by the government it should control.

In this essay, I hope to make a modest defense of the Constitution’s relationship with liberty and make the case that liberty is the Constitution’s purpose.

To do so, I turn to parts of the Constitution less studied on this matter – specifically, the Constitution’s theory of separation of powers, a fuller picture of which will show in part liberty’s relationship with the Constitution.

But first, we note that the Preamble to the Constitution famously concludes the list of that document’s goals as “to secure the blessings of liberty to ourselves and to our posterity.”  One could argue that the other goals stated – a more perfect union, establishing justice, domestic tranquility, common defense, general welfare – culminate in the securing of liberty for ourselves and for future generations.

What does the Constitution mean when it says “liberty” in its Preamble and in the Fifth and Fourteenth Amendment Due Process clauses?

I would suggest that the answer rests in the preservation of individual rights.  Individual rights are what the Constitution pursues, and the preservation of such rights is, for the Constitution, the preservation of liberty.

Consider the Bill of Rights.  Speech, the press, religious exercise, search and seizure, speedy trials, cruel and unusual punishment – all of these are spoken of in rights language.

The Fourteenth Amendment, furthermore, speaks of rights, privileges, and immunities.  Nor is rights language or logic missing from the original seven articles, with protections of contracts, prohibitions on bills of attainder, and limits on the suspension of habeas corpus.

So I think the Constitution views liberty as the full possession and uninhibited use of individual rights.  Therefore, the Constitution’s securing of liberty lies in the securing of these rights.

Federalist 51 famously tells us that men are not angels, and since they aren’t, they will actively seek to infringe upon your life, your liberty, and your property.

The Constitution is in part a reaction to this truth about humanity.  It seeks to establish a government that will prevent these infringements from happening and punish those who persist in such violations.  In this, it seeks to protect your liberty.

But Federalist 51 also gives a warning to the people about their government.  As man’s fallen nature makes a protective government necessary, so government’s administration by human beings makes it also a possible threat to individual rights.  Thus, the Constitution not only empowers government to protect, but seeks to limit that government for the same end.

The institutions that the Constitution creates and the relationships between them also help to secure liberty – namely, our three branches of government and the theory of separation of powers that defines them.  The division of government into the separate institutions of Congress, the presidency, and the courts is one of the Constitution’s greatest contributions to liberty.

In my studies of the Supreme Court, I find frequent reference to the separation of powers as a bulwark to liberty.  The core of this argument stems from Federalist 51’s warning that government can overreach its purpose.  The separation of powers is meant to limit government power and thus to protect us.

The Constitution establishes separation of powers as a way to check and balance the government.  The president can veto legislation to stop Congress.  The Supreme Court can declare laws void and revoke executive actions.  Congress can override vetoes and must approve treaties, Supreme Court appointments, and Cabinet officials.

But I think leaving the separation of powers there sells the theory short and thus sells short the Constitution’s contribution to liberty.

Remember that the threat to liberty is twofold: government is a threat, and other people are a threat.  But in this explanation, separation of powers addresses only the threats government poses to liberty.  That still leaves a gaping hole in liberty’s security in the form of other threats to rights, those threats that the Declaration of Independence states were the reason why governments are created in the first place.

Before we go any farther, think about the way the Constitution’s first three articles begin.  Each starts with a vesting clause that gives powers to a particular branch.  Article I says “all legislative powers herein granted” are vested in a Congress of the United States.  Article II speaks of executive power vested in a president of the united states.  This power is different in kind and nature from legislative.  Article III declares that the judicial power is vested in a judiciary.  This power, too, is distinct from the others with a specific institution to exercise it.

The establishment of particular institutions constructed to best wield a particular kind of power makes our government more, not less, effective.

Let’s begin with the legislative power.  Lawmaking is the power of a government to prescribe general rules with binding force for a society.  The purpose of these rules is the preservation of liberty and the protection of our persons and our property.

What qualities are necessary in an institution tasked with creating statutes?  The Senate has been called “the world’s greatest deliberative body,” and America’s Founders spoke most frequently of deliberation – the ability to consider, reflect, discuss, and refine a proposed law.  Reflection and discussion aid in pointing out the flaws in a proposed law.  Is its aim truly to seek liberty’s protection?  How could it do so better?

Then there’s the executive power, which is vested in the presidency.  In a perfect world, the mere passage and promulgation of laws would be enough.  But that’s simply not the world in which we live.  Even when laws have the right intent, their universal nature makes them insufficient, because no matter how many exceptions you allow, no matter how many circumstances you attempt to account for, a law will never perfectly encapsulate human experience

Out of these problems comes the need not only for executive power, but for a strong exercise of that power.  Laws must be carried out if rights are to be protected.

Carrying out the laws requires two things.  First, it requires some level of discerning how the law should apply in particular circumstances.  This attempts to address the laws’ imperfection of generality by allowing some specificity in its carrying out.

Second, the execution of laws requires a soft persuasion to obedience that must give way to coercion if necessary to ensure compliance.

Thus, we need a strong executive who applies the laws to particular, real circumstances, in ways that protect our rights.

The office of the presidency is constructed for this task.  Hamilton’s writings in Federalists 70 to 74 lay this argument out well.  A good executive must possess two qualities – energy to adequately carry out his duty and safety to guard against overstepping his bounds.  He must possess the power to protect rights without himself becoming a threat to such rights.

Third and finally, there are the courts.  The judicial branch is vested with the judicial power.  But what is that?

The executive and the courts possess a similar relationship with the law.  The law has already been passed, and they carry it out and apply it in some form.  But the courts do so in a way distinct from the executive.  The judicial power acts upon the law by applying that law to resolve disputes.

Disagreements exist all the time between individuals, between governments, and between governments and individuals.  When these disagreements can’t be resolved between the parties, they go before courts to resolve them.

The courts do so by asking how the laws apply to the particular dispute before them.  This adjudicating of disputes by means of applying the law is the judicial power.  This power is crucial to the protection of rights, just as the legislative and executive powers are.

What quality is needed to exercise judicial power?  Federalist 78 declares that the judiciary exercises the quality of judgment, the capacity to know the law and to apply it to circumstances that come before the court.

Regarding the relationship between our Constitution and liberty, I hope we can consider the Constitution a document that, in a time of distrust, we can take some confidence in.

For in the separation of powers, properly understood, we find liberty through government protection as much as we find liberty from government oppression.

Even more, I hope in understanding the myriad ways in which the Constitution attempts to protect liberty, we develop the desire and the ability to defend those attempts.  In such ways, we, too, may preserve the blessings of liberty to ourselves and to our posterity.

Adam Carrington is an assistant professor of politics at Hillsdale College.  This column was adapted from a lecture he delivered at the University of West Florida.

Is the regime established in the Constitution today a help or a hindrance to defenders of individual liberty?

The Constitution is seen by some as facilitating oppression by not adequately protecting us from those forces – those institutions within society that ignore us or seek to devalue us.  Others see it not as facilitating oppression, but as too weak to stop oppression by the government it should control.

In this essay, I hope to make a modest defense of the Constitution’s relationship with liberty and make the case that liberty is the Constitution’s purpose.

To do so, I turn to parts of the Constitution less studied on this matter – specifically, the Constitution’s theory of separation of powers, a fuller picture of which will show in part liberty’s relationship with the Constitution.

But first, we note that the Preamble to the Constitution famously concludes the list of that document’s goals as “to secure the blessings of liberty to ourselves and to our posterity.”  One could argue that the other goals stated – a more perfect union, establishing justice, domestic tranquility, common defense, general welfare – culminate in the securing of liberty for ourselves and for future generations.

What does the Constitution mean when it says “liberty” in its Preamble and in the Fifth and Fourteenth Amendment Due Process clauses?

I would suggest that the answer rests in the preservation of individual rights.  Individual rights are what the Constitution pursues, and the preservation of such rights is, for the Constitution, the preservation of liberty.

Consider the Bill of Rights.  Speech, the press, religious exercise, search and seizure, speedy trials, cruel and unusual punishment – all of these are spoken of in rights language.

The Fourteenth Amendment, furthermore, speaks of rights, privileges, and immunities.  Nor is rights language or logic missing from the original seven articles, with protections of contracts, prohibitions on bills of attainder, and limits on the suspension of habeas corpus.

So I think the Constitution views liberty as the full possession and uninhibited use of individual rights.  Therefore, the Constitution’s securing of liberty lies in the securing of these rights.

Federalist 51 famously tells us that men are not angels, and since they aren’t, they will actively seek to infringe upon your life, your liberty, and your property.

The Constitution is in part a reaction to this truth about humanity.  It seeks to establish a government that will prevent these infringements from happening and punish those who persist in such violations.  In this, it seeks to protect your liberty.

But Federalist 51 also gives a warning to the people about their government.  As man’s fallen nature makes a protective government necessary, so government’s administration by human beings makes it also a possible threat to individual rights.  Thus, the Constitution not only empowers government to protect, but seeks to limit that government for the same end.

The institutions that the Constitution creates and the relationships between them also help to secure liberty – namely, our three branches of government and the theory of separation of powers that defines them.  The division of government into the separate institutions of Congress, the presidency, and the courts is one of the Constitution’s greatest contributions to liberty.

In my studies of the Supreme Court, I find frequent reference to the separation of powers as a bulwark to liberty.  The core of this argument stems from Federalist 51’s warning that government can overreach its purpose.  The separation of powers is meant to limit government power and thus to protect us.

The Constitution establishes separation of powers as a way to check and balance the government.  The president can veto legislation to stop Congress.  The Supreme Court can declare laws void and revoke executive actions.  Congress can override vetoes and must approve treaties, Supreme Court appointments, and Cabinet officials.

But I think leaving the separation of powers there sells the theory short and thus sells short the Constitution’s contribution to liberty.

Remember that the threat to liberty is twofold: government is a threat, and other people are a threat.  But in this explanation, separation of powers addresses only the threats government poses to liberty.  That still leaves a gaping hole in liberty’s security in the form of other threats to rights, those threats that the Declaration of Independence states were the reason why governments are created in the first place.

Before we go any farther, think about the way the Constitution’s first three articles begin.  Each starts with a vesting clause that gives powers to a particular branch.  Article I says “all legislative powers herein granted” are vested in a Congress of the United States.  Article II speaks of executive power vested in a president of the united states.  This power is different in kind and nature from legislative.  Article III declares that the judicial power is vested in a judiciary.  This power, too, is distinct from the others with a specific institution to exercise it.

The establishment of particular institutions constructed to best wield a particular kind of power makes our government more, not less, effective.

Let’s begin with the legislative power.  Lawmaking is the power of a government to prescribe general rules with binding force for a society.  The purpose of these rules is the preservation of liberty and the protection of our persons and our property.

What qualities are necessary in an institution tasked with creating statutes?  The Senate has been called “the world’s greatest deliberative body,” and America’s Founders spoke most frequently of deliberation – the ability to consider, reflect, discuss, and refine a proposed law.  Reflection and discussion aid in pointing out the flaws in a proposed law.  Is its aim truly to seek liberty’s protection?  How could it do so better?

Then there’s the executive power, which is vested in the presidency.  In a perfect world, the mere passage and promulgation of laws would be enough.  But that’s simply not the world in which we live.  Even when laws have the right intent, their universal nature makes them insufficient, because no matter how many exceptions you allow, no matter how many circumstances you attempt to account for, a law will never perfectly encapsulate human experience

Out of these problems comes the need not only for executive power, but for a strong exercise of that power.  Laws must be carried out if rights are to be protected.

Carrying out the laws requires two things.  First, it requires some level of discerning how the law should apply in particular circumstances.  This attempts to address the laws’ imperfection of generality by allowing some specificity in its carrying out.

Second, the execution of laws requires a soft persuasion to obedience that must give way to coercion if necessary to ensure compliance.

Thus, we need a strong executive who applies the laws to particular, real circumstances, in ways that protect our rights.

The office of the presidency is constructed for this task.  Hamilton’s writings in Federalists 70 to 74 lay this argument out well.  A good executive must possess two qualities – energy to adequately carry out his duty and safety to guard against overstepping his bounds.  He must possess the power to protect rights without himself becoming a threat to such rights.

Third and finally, there are the courts.  The judicial branch is vested with the judicial power.  But what is that?

The executive and the courts possess a similar relationship with the law.  The law has already been passed, and they carry it out and apply it in some form.  But the courts do so in a way distinct from the executive.  The judicial power acts upon the law by applying that law to resolve disputes.

Disagreements exist all the time between individuals, between governments, and between governments and individuals.  When these disagreements can’t be resolved between the parties, they go before courts to resolve them.

The courts do so by asking how the laws apply to the particular dispute before them.  This adjudicating of disputes by means of applying the law is the judicial power.  This power is crucial to the protection of rights, just as the legislative and executive powers are.

What quality is needed to exercise judicial power?  Federalist 78 declares that the judiciary exercises the quality of judgment, the capacity to know the law and to apply it to circumstances that come before the court.

Regarding the relationship between our Constitution and liberty, I hope we can consider the Constitution a document that, in a time of distrust, we can take some confidence in.

For in the separation of powers, properly understood, we find liberty through government protection as much as we find liberty from government oppression.

Even more, I hope in understanding the myriad ways in which the Constitution attempts to protect liberty, we develop the desire and the ability to defend those attempts.  In such ways, we, too, may preserve the blessings of liberty to ourselves and to our posterity.

Adam Carrington is an assistant professor of politics at Hillsdale College.  This column was adapted from a lecture he delivered at the University of West Florida.