Constitutional "checks and balances": the separation of powers

1.

CONSTITUTIONAL ‘CHECKS AND BALANCES’:
THE SEPARATION OF POWERS
NBU CIVICS

2.

ECONOMIST INTELLIGENCE UNIT: DEMOCRACY INDEX 2022
Consider these data
from Economist
Intelligence Unit’s
Democracy Index
Full democracies:
Flawed democracies:
Hybrid regimes:
Authoritarian regimes:
Sources: image, data

3.

ECONOMIST INTELLIGENCE UNIT: DEMOCRACY INDEX 2022
What do EUI’s groups mean? (SOURCE)
FULL DEMOCRACIES: civil liberties and fundamental political freedoms are respected; have a valid system of
governmental checks and balances, an independent judiciary, governments that function adequately, and diverse and
independent media; limited problems in democratic functioning.
FLAWED DEMOCRACIES: elections are fair and free and basic civil liberties are honoured but may have issues (e.g.
media freedom infringement and minor suppression of political opposition and critics); have significant faults in other
democratic aspects, including underdeveloped political culture, low levels of participation in politics, and issues in the
functioning of governance.
HYBRID REGIMES: regular electoral frauds, preventing them from being fair and free democracies; governments apply
pressure on political opposition; non-independent judiciaries, widespread corruption, harassment and pressure on
media, anaemic rule of law; more underdeveloped political culture, lower levels of participation in politics, and issues in
the functioning of governance than flawed democracies
AUTHORITARIAN REGIMES: political pluralism is non-existent or severely limited; often absolute monarchies or
dictatorships, may have some conventional institutions of democracy but with meagre significance, infringements and
abuses of civil liberties are commonplace, elections (if they take place) are not fair or free (including sham elections),
the media is often state-owned or controlled by groups associated with the ruling regime, the judiciary is not
independent, and censorship and suppression of governmental criticism are commonplace.
Free elections are not enough
Full democracies require also a ‘valid system of governmental checks and balances, an
independent judiciary, governments that function adequately’

4.

BACK TO THE GLORIOUS REVOLUTION
To find out more about this extra requirement – back to England’s Glorious
Revolution of 1688-1699
Consider these articles of the English Bill of Rights from 1689:
‘Suspending the laws or the execution of laws by regal authority without consent
of Parliament is illegal’
[= the power of suspending laws rests in the hands of Parliament]
‘Dispensing with laws or the execution of laws by regal authority [...] is illegal’
[= the Crown does not have the legal authority to legislate on its own]
‘Levying money for or to the use of the Crown by pretence of prerogative,
without grant of Parliament [...] is illegal’
[= the imposition of any taxes by the Crown without the permission of Parliament
is illegal]
‘Jurors ought to be duly impanelled and returned, and jurors which pass upon
men in trials for high treason ought to be freeholders’
[= all court trials require the presence of jurors; all jurors for trials of high treason
must be land owners]

5.

LOUIS XV (1710-1774)
Other monarchies took a different track
E.g., on 3 March 1766 Louis of France appeared
before his highest magistrates and said this (image
source):
‘In my person alone resides the sovereign power,
and it is from me alone that the courts hold their
existence and their authority. That authority can
only be exercised in my name. For it is to me
exclusively that the legislative power belongs. The
whole public order emanates from me since I am
its supreme guardian. The rights and interests of
the nation are necessarily united with my own and
can only rest in my hands’ (1766, Louis before his
highest magistrates)

6.

THE BILL OF RIGHTS VS LOUIS XV
Key similarities?
Different kinds of political
power: legislative; judiciary;
executive
Key differences?
Bill of Rights: keeps them
safely separated
Louis: merging them into the
person of the monarch
Hence: a ‘constitutional’
monarchy (English case) vs
‘absolute monarchy’ (French
case)

7.

TODAY’S CONSTITUTIONS
NOTE: ‘Constitution’ = overall organisation/structure/anatomy of a political community; ‘the DNA’ of the ‘body politic’
(does not need to be written/codified in a single document)
Consider the modern world’s first three codified constitutions: US (1788), Poland (1791), and Norway (1814):
Constitution of the US, art. 1, sec. 1: ‘All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives’; art. 2, sec. 1: ‘The executive Power
shall be vested in a President of the United States of America’; art. 3, sec. 1: ‘The judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish’
Constitution of Poland, sec. 5: ‘All authority in human society takes its origin in the will of the people. Therefore,
that the integrity of the states, civil liberty, and social order remain always in equilibrium, the government of the
Polish nation ought to, and by the will of this law forever shall, comprise three authorities, to wit: a legislative
authority in the assembled estates, a supreme executive authority in a King and Guardianship, and a judicial
authority in jurisdictions to that end instituted or to be instituted’
Constitution of Norway, art. 3: ‘The Executive Power is vested in the King, or in the Queen if she has succeeded
to the Crown pursuant to the provisions of Article 6 or Article 7 or Article 48 of this Constitution’; art. 49: ‘The people
exercise the Legislative Power through the Storting [=Norway’s Parliament]. Representatives to the Storting are
elected through free elections and secret ballot’; art. 95: ‘Everyone has the right to have their case decided by an
independent and impartial court within a reasonable time. The trial shall be fair and public. The court may still close
the courtroom if the interests of the parties’ privacy or other substantial public interests make it necessary. The
authorities of the State shall secure the independence and impartiality of the courts and the judges’

8.

U.S., POLAND, NORWAY – CONSTITUTIONAL SIMILARITIES?
Easy: the separation of political powers (legislative/executive/judicial) is a common feature of all three
constitutions; hence – closer to England’s Bill of Rights than to Louis XV.
IMAGE SOURCE

9.

THE ‘SEPARATION OF POWERS’: ORIGINS
According to this passage from James Madison (1751-1836),
US ‘Founding Father’, ‘Father of the Constitution’, and the 4th
president of the US (1809-1817, image):
‘The oracle who is always consulted and cited on this subject is the
celebrated Montesquieu. If he be not the author of this invaluable
precept in the science of politics, he has the merit at least of
displaying and recommending it most effectually to the attention of
mankind. Let us endeavor, in the first place, to ascertain his
meaning on this point. The British Constitution was to Montesquieu
what Homer has been to the didactic writers on epic poetry’
And what was Montesquieu’s opinion of the ‘British’
Constitution?
De l’esprit des loix (=The Spirit of Law[s], image), 1748; here,
Charles de Secondat, Baron de Montesquieu (image), after 20+
years of research, described in detail his understanding of the
origin and nature of human laws and legal systems

10.

MONTESQUIEU
The Spirit of Laws – a massive text of 19 books; Book 11 discussed the nature of ‘the laws which
established political liberty’; chapter 6 of this book was titled ‘Of the Constitution of England’:
1. ‘In every state there are three kinds of power : the legislative authority, the executive authority for things
that stem from the law of nations, and the executive authority for those that stem from civil law...’
2. ‘Through the first, the prince or magistrate makes laws for a time or for all time, and amends or
abrogates those that are in place. Through the second, he makes peace or war, sends or receives
ambassadors, provides for security, and prevents invasions. Through the third, he punishes crimes or
judges disputes between individuals. We will call this last one the authority to judge, and the former
simply the executive authority of the state.’
3. There would be zero liberty ‘were the same man, or the same body, whether of the nobles or of the
people, to exercise those three powers, that of enacting laws, that of executing the public resolutions,
and of trying the causes of individuals…’
4. For example, in ‘Turkey, where these three powers are united in the sultan’s person, the subjects groan
under the most dreadful oppression…’
5. ‘It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is for
my purpose to observe, that it is established by their laws; and I inquire no farther’

11.

MONTESQUIEU
This was Montesquieu’s opinion of the English
Constitution
Ironically, independent America won the War of
Independence against the British Empire – and
yet built their entire constitution on this
fundamentally English principle; Americans were
aware of that discrepancy – consider e.g.
Thomas Jefferson, Founding Father & 3rd
president of the US (1801-09), who once wrote
(1811):
‘Montesquieu’s immortal work on the Spirit of
laws could not fail of course to furnish matter
for profound consideration. I have admired his
vivid imagination, his extensive reading, and
dexterous use of it, but I have not been blind
to his paradoxes, his inconsistencies, and
whimsical combinations…’

12.

EXAMPLES OF SUCH ‘CHECKS AND BALANCES’?
Visit https://www.constituteproject.org
Pick a country and open its constitution
Use keyword search and find examples of checks/balances 1, 2, 3, 4, 5, 6