Separation of Powers Federalism and Election of Reps

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Updated: Aug 30, 2023
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At the end of the American Revolution—the fight to end the tyranny of the British Parliament and King George III—there was an understandable desire amongst the colonists to prevent the type of government which trampled the rights of the governed. Fear of oppressive rule fueled the creation of a new and more radical form of government, resulting in the Articles of Confederation.

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These were eventually replaced by the Constitution. Drafting the latter proved to be challenging, as it needed to find a balance between the despotic rule of the British powers and the ineffectiveness and lack of power granted towards a central government by the Articles of Confederation. The culmination of previous models resulted in an equilibrium: a national government composed of three branches to enforce the powers expressly delegated to it by the constitution, and similarly structured state governments which were to assume the powers not explicitly given to the national government. Though the test of time has gradually yet vastly expanded the scope of governmental authority, remnants of the original political paradigm are still in full display.

The drafters of the US Constitution were wary of man’s innate desire to control the lives of others. Noting the successes and failures of past nations, they aimed to decentralize power enough to prevent a tyrannical rule, yet centralize authority adequately to allow the government the capacity to safeguard the rights of its citizens. Recognizing that governments often expand in authority at the cost of the rights of the governed, they decided to adopt a theory that divided the administrative powers of government into three distinct branches.

Charles Montesquieu, a renowned 17th-century political philosopher, emphasized the importance of having legislative, executive, and judicial powers separated in a way that prevents any of them from overriding each other, be it a single branch or in collusion. Disrupting the balance between the three paves the path for tyranny—as a single person or group of individuals could impose or enforce their will that infringes on one’s liberties. The evident application of this theory in our Constitution is in the three branches—Congress, the Executive branch, and the Judicial branch. The aim of this seemingly inefficient system for passing legislation serves several functions. Public outcries and disputes often evoke knee-jerk reactions from public leaders and result in the passing of laws which trade citizens’ liberties for the promise of safety. The passing of the Patriot Act, which violated many Americans’ rights, particularly the 4th amendment, in response to 9/11, is a notable example of this.

Another vital purpose is to slow down the political progression and governmental expansion of the country. The New Deal, passed in response to the Great Depression, was born out of people’s despair. Through the legislation, the government assumed many new powers and significantly increased the public’s dependency. As people began depending on the government for jobs, retirement, food, the economic freedom of those who had to fund these programs suffered. Where the government failed to protect the rights of its populace, the Supreme Court declared some of FDR’s acts as unconstitutional. While the checks and balances worked to an extent, a government is only as effective as its constituents.

Representation of states and their citizens was originally demonstrated in the Constitution by the two legislative chambers that comprise Congress, which resulted directly from the Great Compromise of 1787. Disputes over how much power was to be assigned to each state scared many due to fears of overrepresentation or underrepresentation. Delegates from states like Delaware advocated for equal representation in the legislature, claiming that their needs would not be met due to the higher population in other states. In contrast, larger states wanted representation based on population. The compromise concluded with the creation of a bicameral legislature consisting of an upper and lower house, named the Senate and House of Representatives respectively. For the President to sign a bill into law, it must be approved by both houses. This process often complicates the legislation passage as any house or the president can stall the entire lawmaking procedure, making it lengthy.

With a large country encompassing many distinct cultures, the socioeconomic needs of one population segment are likely to differ from the rest. To represent the vast range of needs of the populace, the House of Representatives comprises members representing districts with roughly equal citizen counts.

While bills can originate in either the House or the Senate, taxes must first come from the lower house. Since revenue is primarily raised by the people, it’s logical they have a more direct say than the states via the Senate. To try minimizing the impact of enacting large tax rates, Tax Day is conveniently placed on April 15th, almost exactly six months away from elections, allowing people some time to forget the money deducted from them.

By its composition, representatives in the House are consistently up for reelection. With seats up for vote every two years, frequent control switches are expected. The framers decided that the continuous renewal of Congressmen would provide voters an opportunity to stall the lawmaking process if necessary. This gives voters a chance to block changes they do not support, rather than having to wait an extended period before they can stop them.

As a coalition of states, hence the name The United States, the founders thought it was appropriate to give them direct influence in the federal law-making procedure. Given the sovereignty of each state, they each received two representatives whose task was to prevent the federal government from assuming powers granted to the states, and to withstand the political pressure arising from public outcry, or as Gouverneur Morris said, “keep[ing] down the turbulence of democracy.”

The implementation of this principle is evident in the Senate’s fundamental design. Lengthy terms and the indirect election of the representatives were arranged to ensure the democratic process would not infringe on the rights of the minority who didn’t have strength in numbers. Aristotle noted that when Greece practiced direct democracy, the majority did what was best for the majority – not for everyone.

Senators are elected once every six years, with one third of them getting re-elected each midterm or presidential election. As the Constitution was intended to protect the rights of all people, especially when those rights were unpopular, the fairly long terms shield them from public uproar due to despised decision making used to secure the liberties of those who do not have a larger vote count.

Legislators on the state level initially voted for senators to represent their state on the national level. However, the 17th amendment changed the election to a simple popular vote. With the reconstruction of the Senate, it is unable to fulfill its role in representing the state’s interest which has led to an expanding central government.

Although the anti-commandeering doctrine states that the federal government may not demand participation in its ambitions, the lack of representation from the states in Congress has provided a loophole. All that is needed is to simply hinder the budget of states that do not comply.

The National Minimum Drinking Age Act of 1984 compelled states to raise the age to consume alcohol to 21 in fear of losing federal funds to build highways.

The absence of Senators acting on behalf of the state enables federal politicians to use their power to administer their agenda onto the states, in lieu of abiding by the forefathers’ idea that the national government would be extremely limited. Evidence of this is exhibited by the direct conflict of passed legislation and the Bill of Rights, such as the National Firearms Act and the Second Amendment.

The executive branch is comprised of a single person intended to sign bills into law. In Federalist No. 70, Alexander Hamilton expresses his views on the advantages of having a unitary executive, pointing out that having a sole person leading the branch would ensure that there is accountability. In a sense that a group of people (e.g. the legislative chambers), it is usual to have the blame of unpopular decisions dispersed out amongst the crowd. He also noted that a single executive will counter the painstakingly tedious process of getting enough ‘yeas’ to get bills passed. The term length of four years adds reliability to the government as there is not a national leader changing frequently.

The electoral college is the procedure in electing a new President. With each election, each state gets the sum of their Senators (two) and how many House Representatives they have in votes. With concern of a pure democracy degrading individual liberty, they sought to take away power from densely populated areas and redistribute otherwise. Thomas Jefferson made it well known that he was not fond of cities. He exclaimed, “The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body.” Today’s large urban areas such as New York City and the Bay Area of California often advocate for more governmental control, even going as far as calling for Socialism. The parallelism unveiled highlights the founding fathers’ fears of what might have come if the nation took a more democratic approach. As the popular vote would encourage presidential candidates to focus their efforts on highly occupied regions, the electoral college shifts the attention to other areas such as the Midwest, or ‘flyover states.’

After FDR’s fourth term as president, the 22nd amendment was passed, limiting the amount of time a person may be elected to the Oval Office: twice. The change to the constitution proved beneficial, as FDR’s continuous presidency allowed him to outlive many members of the Supreme Court, promoting the growth of government. This happened as the court allowed legislation to be passed, that would’ve otherwise been rejected.

The president also has the power to nominate Supreme Court justices with the advice and consent of a simple majority vote in the Senate. Given that the Supreme Court handles cases disputing the interpretation of the Constitution and interstate conflicts, the Senate’s approval aligns with the framers’ vision that a direct democracy isn’t always the ideal route. Should the House of Representatives have a say in the nomination, dilemmas between states would lie in the hands of the populace rather than the states. Likewise, conflicts regarding the constitution should not be determined by the people alone, as public opinion could override the minority rights. This was evident in the court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court sided with a baker who denied service to a homosexual couple. Had the case been decided by a majority vote, the prevailing socially left-leaning position could have infringed on the baker’s rights.

Lifetime appointments were designed to stagnate the nation’s political change. Lifetime terms allow the older generation to assess the legitimacy of newly passed legislation. This means if a recently popular policy gets instituted, the Supreme Court could overrule it and the other branches would simply have to wait until the justices’ term ended, or they passed away, freeing up a new seat. This was intended to safeguard the unpopular rights of those not aligning with the common viewpoint of the time. As America has become more authoritarian since its creation, the Supreme Court has slowed the process. This is, in part, due to justices’ independence from public opinion, much like Senators. This arrangement was designed so they could uphold the constitution and question laws threatening its authority, even if it was against the majority’s opinion.

Under the purview of the executive branch, what many call the administrative state has evolved, free from the checks and balances delineated by the constitution. Spawned from FDR’s New Deal, these agencies have assumed the administrative powers of all three branches of government. Over time, it expanded its influence, even creating rules without Congressional oversight. Notably, the Food and Drug Administration and the Environmental Protection Agency operate under the law to devise and enforce regulations free from external restrictions, greatly increasing the number of regulations and often curtailing freedoms and job opportunities.

The imposed regulations are often quite absurd. The Department of Transportation, in conjunction with the National Highway Traffic Safety Administration, released The Federal Motor Vehicle Safety Standards–Minimum Sound Requirements for Hybrid and Electric Vehicles.

(81 FR 90416) dictates the amount of noise your car may produce. It states, “[cars are to] produce sounds meeting the requirements of this standard.” This imposed regulation depletes liberty without any accountability, as there is no election to vote out members of the administrative state. Such unchecked power has led to the coined phrase ‘The Fourth Branch of Government.’

The explosion of government authority is not without reason. Although the Framers of the Constitution did an excellent job of decentralizing power to prevent tyranny, they miscalculated the dominance of political parties. Duverger’s Law, the notion that voters are less likely to vote for third parties for fear that their second choice would lose to their least favorite, has created a bipartisan system. In this system, third parties severely lag behind, rarely even getting a single seat in Congress. James Madison thought that several factions would rule the nation. In their competition for power, they would be forced to form coalitions. As a result, he believed that fewer extreme policies would be enacted since coalitions would not support radical decision-making that might lead to a loss of rights for the people.

The advice George Washington gave us to avoid political parties did not last long. There have almost always been two dominant political organizations competing for power. The framers thought that the separation of the three branches of government would self-restrict, with each branch warding off the other two to prevent encroachments of power. However, with different branches of government working towards the same goal through party unity, the influence of one branch has expanded, as seen with the administrative state, for instance. This has undermined individual liberty and respect for the constitution.

Despite the disappointing changes in the United States federal government, checks and balances have, many times, successfully restrained its authority. Federalism has been degraded, but there is still hope. After all, three-fourths of the states can agree to change the Constitution, provided they have permission from their state legislators. As P.J. O’Rourke aptly puts it, “The mystery of government is not how Washington works, but how to make it stop.”

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Separation of Powers Federalism and Election of Reps. (2021, Aug 08). Retrieved from