This blog provides educational material from session eleven of FreedomCivics® – Foundations of American Government.
The three branches of the United States government can oftentimes be frustrating and confusing. In recent years, it seems like laws take forever to pass and are constantly under review. This is no mistake - this is the whole purpose of the Constitution and the separation of powers. Our Founders saw that there was no separation of powers or checks and balances in tyrannical governments; so they used these principles to seek fairness for their country." They created the three branches of government to make sure power is evenly distributed and laws are Constitutional. This blog will uncover the purposes behind each branch of government and why it is still relevant and important for Americans today.
The Separation of Powers
In revolutionary times, the colonists rebelled against Great Britain because the British ruled them without their consent and violated their natural rights. The colonists expected to be treated as fairly as an Englishman would be in London. When it was clear that King George III and Parliament would not do so, they established a new nation that would defend the rights of the American people. But the revolution would not serve freedom and liberty if the new American government was just another monarchy, so the Founders chose to craft a new Constitution that would ensure that the government was accountable to the people.
The well-read Founders had learned from history that a characteristic of tyrannical government was that they never separated the government’s powers. The Founders created three branches of government so they would have to answer to one another for their actions: the legislative branch to make laws, the executive branch to enforce laws, and the judicial branch to interpret laws and make sure the Constitution was upheld. They knew that humans are naturally self-interested. People are prone to pass laws that bring benefits to themselves and not for the common good. Most people cannot be trusted to judge their own actions fairly. The separation of powers ensures that our government is accountable to the people and that different people are responsible for making, enforcing, and judging laws.
The Rule of Law
The rule of law is the principle that the government and the governed are subject to the law. And that all are to be treated the same way by the law. It means that the rules apply to everyone in the same manner, regardless of their status, power, race, or age. This cornerstone of our republic seeks to stop the arbitrary judgment of government officials. John Adams famously described the purpose of the Constitution as ensuring that the government will be a “government of laws, and not of men.”
Adams and the other Founders knew well what happened when there was no rule of law, such as in the later years of the Roman Empire. In the United States of America, all laws must be passed by a legislature accountable to the people. Then those laws are enforced by a president whom the people elect. If Congress passes an unconstitutional law, the people can elect new senators and representatives to Congress, or they can appeal to the courts to strike down laws. If the president enforces a law unfairly, the people can elect a new president. Or they can appeal to a court to have the law enforced fairly, appeal to Congress to clarify the meaning of the law, or (in extreme cases) impeach and convict the president.
In contrast to the U.S. constitutional system, the Roman emperor enacted laws he wanted – even when they violated the rights of the people. The people had no court to go to stop him. Their only recourse was to appeal to the emperor. The rule of law also means that laws apply to everyone equally. The Roman emperor also created different rules for different groups without prior notice. As an all-powerful tyrant, he killed citizens and took citizens’ property. He was above any just law. He was the law unto himself. But this cannot happen in America, where the laws apply equally to all citizens.
How Separation of Powers and the Rule of Law Are Related
If there were no separation of powers, there would be little respect for the law, since the enforcement of the law would not be checked by anyone other than the ruler or president. They could violate the rights of citizens and not have to answer for it. But by ensuring that Congress passes laws, the president enacts and enforces them, and the court judges the laws, the Constitution ensures that the laws are supreme. Each branch of government can protect against another branch violating the law. Each branch of government is accountable to the Constitution – the supreme law of the land.
The Difference Between Separation of Powers and Checks & Balances
“Separation of Powers” refers to the powers of government – passing legislation, enforcing laws, and judging laws – being distributed between the three branches. Congress is the only branch that can pass laws, the executive is the only branch that can enforce laws, and the judiciary is the only branch that can judge disputes arising under the law.
“Checks and balances” refers to how the branches of government are accountable to one another, where specific powers are granted to each branch to challenge abuses of power by other branches. The president, for example, has the power to veto laws passed by Congress. The veto allows the president to protect their own powers. For example, the president could veto a bill passed by Congress that would deny the president the money to pay for the armed forces. The veto also provides the president with a means to reject bills believed to be unconstitutional prior to Supreme Court review. The House of Representatives can impeach a president who violates his constitutional duties, and the Senate can convict them. The courts can strike down unconstitutional laws.
Defending the Constitution
Every member of the government – senators and representatives, the president, and judges alike – swears an oath to defend the Constitution. They are all responsible for defending the meaning of the Constitution but do so in different ways. When proposing legislation, our elected officials should debate whether it is constitutional. Congress should repeal laws that are unconstitutional. The president should also veto bills passed by Congress that they believe are unconstitutional.
The courts’ power is key to resolving disputes about the law. Because the Constitution is the supreme law of the land, the district courts, circuit (appeals) courts, and the Supreme Court must strike down any law that conflicts with the Constitution. If a case is not settled in the lower courts, and it ends up in the Supreme Court, the nine justices make the final determination. The Supreme Court justices often disagree about the original intent of the legislation or whether it is constitutional. For example, there are many cases where there are five justices who agree with the plaintiff and four justices who vote with the defendant."
Ultimately, the people must take an interest in their own government, be aware of efforts to violate the Constitution, and work to elect senators and representatives who uphold it. For example, many Americans believed that the Alien and Sedition Acts passed in the 1790s were unconstitutional. But they did not rely on the court to strike them down. Rather, in the election of 1800, the American people overwhelmingly voted for Thomas Jefferson’s Democratic-Republicans, who promised to undo the Alien and Sedition Acts. Today, voters can elect presidents who will nominate Supreme Court justices who have a record of either interpreting the Constitution by what the Founders intended or who believe that the Constitution is a “living document” to be interpreted according to current public opinion.
The Intent of The Founders
Alexander Hamilton, James Madison, and John Jay, three prominent Federalists, wrote a series of articles published in New York City newspapers. These articles explained to citizens what the various provisions of the proposed Constitution meant. The authors’ purpose was to encourage the adoption of the Constitution by the convention formed in New York State. The individual articles were later collected into what is now called The Federalist Papers, commonly known as The Federalist. This collection of articles is considered the best explanation of why and how the Constitution should work. While not considered an organic law of the American Government, The Federalist is widely held as a foundational document.
The Founders created the U.S. Constitution and our government system in order to make power accountable. Each part of the government is a layer of equal power that can’t function without the checks and balances from the other branches. Although it can be frustrating for us when our legal wants and needs are not met, we must remember that the purpose of our government is to make sure our laws are fair and constitutional.
The U.S. Constitution is a robust document with a profound history. Understanding its origin helps us understand the country we live in today, and gives us the tools to navigate its future.
To learn more on this topic, a full text with more information about the U.S. Constitution is provided in Session 11 of FreedomCivics® – Foundations of American Government.
FreedomCivics® is a 20-session curriculum that includes discussion questions, activities, resources, quizzes, and a final exam. For more information about the course, please visit or contact us with the information below.
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