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Unit 6: Socio-Economic Bases and Salient Features of the Constitutions

and judiciary. The Founding Fathers adhered to the idea of separation of powers for the reason Notes
that, as Lord Acton aphorised, ‘power corrupts and absolute power corrupts absolutely’. Whether
sovereignty rests in an absolute monarch or the people, it is potentially dangerous and the only
possible way out is to realise the political truth that power checks power. Madison had warned
that any concentration and accumulation of powers in the hands of one, or few, or many,
whether hereditary, elected, appointed or nominated, amounts justly to the very name of a
tyrannical government.
As a result, the American constitutional system is based on the idea of separation of powers
coming from the monumental contributions of Locke and Montesquieu and also from the
language of the Constitution of Massachusetts. Art. I of the Constitution says: “All legislative
powers herein granted shall be vested in a Congress.” Art. III begins: “The judicial power...
shall be vested in one Supreme Court and in such other inferior courts as Congress from time
to time may ordain and establish.” In its most dogmatic form, the American conception of the
separation of powers may be summed up in the following propositions:
(i) There are three intrinsically distinct functions of government, the legislative, the executive,
and the judicial;
(ii) These distinct functions ought to be exercised respectively by three separately manned
departments of government; which should be constitutionally and mutually independent;
and
(iii) A corollary doctrine stated by Locke - the legislature may not delegate its powers.
However, the Founding Fathers were scientists as well. They well understood that separation
did not mean complete disconnection. Apart from incorporating the law as laid down by Locke
and Montesquieu, they invented a new system of checks and balances whereby they enabled
each organ of government to exercise control over others so that the fear of partial despotism
could be dispelled. The new arrangement was devised to set off the disasters of water-tight
compartmentalisation as well as to ensure that no branch of government would become autocratic
or irresponsible even in its own sphere of activity. This means that no branch of government
has been given unrestricted area of authority even in its own sphere in as much as the other
two organs of government have been given a limited power of acting as checks in order to
prevent the abuse of power. In a word, the principle of checks and balances “requires that after
the main exercise has been allocated to one person or body, care should be taken to set up a
minor participation of other persons or bodies.”
This type of adjustment may be seen in this manner. The executive authority is with the
President checked by the Congress and the Supreme Court. For instance, all appointments and
foreign treaties made by the President are subject to Senatorial confirmation. Besides, the
Congress can remove the President from office by the process of impeachment. Then, the
President takes the oath of office before the Chief Justice to defend and protect the Constitution
and the Supreme Court and federal courts, by virtue of their power of judicial review, may
declare any order given by him ultra vires if it is found against the provisions of the Constitution
or the due process of law. Likewise, the legislative power is vested in the Congress. It is
provided that a bill passed by the Congress is under Presidential veto, but if the President
rejects a bill and the Congress re-adopts it with a two-thirds majority, the Presidential veto is
over-ridden. Then, the federal courts with Supreme Court at the top can exercise the power of
judicial review and thereby determine the constitutional validity of any Congressional legislation
either on the basis of authoritative interpretation of the constitutional provisions or due process
of law. Finally, judicial branch is checked by the fact that the Congress can determine the
number of judges and their salaries and emoluments, or limit their appellate jurisdiction, or
even remove a judge by the process of impeachment. It all demonstrates the fact that this
separation of powers combined with the precautionary checks and balances is, indeed, the
‘primary feature of American government.
It is often said that the principle of separation of powers works well in the United States for the
reason that there is the complementary system of checks and balances. But the real operation

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