II. Separation and Delegation of Powers

Montesquieu may have been inaccurate in his description of the English system of government of his time and a poor prophet of the developments that were to take place in it, but he certainly proved an excellent forecaster of one of the major trends in American political development. Montesquieu believed that in order to safeguard liberty it was necessary to separate the powers of government and to vest them in legislative, executive, and judicial departments. When the framers of the Constitution of the United States vested the legislative, the judicial, and the executive powers of government in the three departments, they were doubtless following the ideas of Montesquieu as well as generalizing from the hard experiences of early state and Confederation years. The doctrine that a department to which certain powers of government have been assigned may not grant them to another department and thus frustrate the principle of the separation of powers is often called the doctrine of the delegation of powers. This doctrine is a corollary of the doctrine of the separation of powers. It might also be thought of as a sanction of that doctrine. To think of the doctrines of separation and delegation of powers without reference to their qualifications may give one a misleading idea of both Montesquieu and the American system of government, and it is important to remember that Montesquieu himself introduced the idea of checks and balances in his formulation of the doctrine of the separation of powers. He also seems to have anticipated the charge that a rigid separation would be unworkable. Practical observer and reformer that he was, he saw the necessity for making it possible to have the legislative and executive branches of government work together, and he believed that in his proposed system of government he not only had protected liberty, but had made it easy for the government to function effectively. In his discussion of the constitution of England, he stated that: “These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.”