Divide Powers for a “Good” and “Safe” Government
America’s Founders realized that meeting the dual challenge of having a strong government and at the same time keeping it, or a majority within it, from oppressing people wasn’t that difficult.
Thomas Jefferson described the American thinking: “The way to have good and safe government is not to trust it all to one, but to divide it among the many.” The common-sense solution to the age-old problem that ‘power corrupts’ was to separate powers. Dividing powers made for a safe government because it reduced the risk of both, the tyranny of majority and of government.
But that dividing powers also improved government’s effectiveness was a profound American experience. A concentration of powers always led to abuse of those powers was history’s lesson, but the lesson that dividing powers could improve governance was a revelation.
The quality of governance depended upon the degree and technique of dividing powers. The American experience had shown that dividing powers too extensively risked people’s liberties too. The trick therefore was to strike the right balance. This became the true philosophic basis of America’s second revolution. James Madison wrote: “Power, when it has attained a certain degree of energy and independence, goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation.” “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power,” he said.
But the best way to achieve just the right concentration of powers – neither too much, nor too little – was not apparent. None of the existing governments, especially the British, satisfied the American desire for a strong-but-not-oppressive government. In their experience the British government had shown all the ill effects of abuses of power, and was not at all worthy of emulation. Jefferson noted: “It is not in the history of modern England or among the advocates of the principles or practices of her government that the friend of freedom, or of political morality, is to seek instruction… The vital principle of the English constitution is corruption…”
The Americans turned to political philosophers to see if they had any instruction in separating powers. In 1690 in his Second Treatise of Government, Locke had described a principle for limiting the powers of rulers. If “the same persons who have the power of making laws to have also in their hands power to execute them… they may exempt themselves from obedience to the laws they make,” he had written. Similarly, a famous French political philosopher Charles Louis II, Baron de Montesquieu had said that “in well ordered commonwealths …the legislative and executive power come often to be separated.”
It was in the writings of Montesquieu that the Americans found a practical basis of separating powers. In his 1748 work “On the Spirit of Laws” Montesquieu had refined his concepts. He had presented the arguments for the three “separate and equal” branches of government. The best way to prevent tyranny, he had said, was to entrust to legislative the task of enacting laws, executive to enforce laws, and judiciary to punish violators of law. Montesquieu had a word of warning: “When legislative power is united with executive power in a single person in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”
Adapted from Why India Needs the Presidential System (HarperCollins) by Bhanu Dhamija