In Federalist #47 and #48, Madison responds to the principle that the three branches of government ought to be completely separate, with no overlap in purpose or control. The idea carried a lot of influence because it was first proposed by the respected philosopher Montesquieu and because the existing states more or less followed it in their state constitutions. The Constitution’s adversaries, who sought to score against its every possible flaw, asked whether this ideal of separation would be maintained in the Constitution. Madison saw fit to respond at length. His answer spreads across two Federalist essays. He could not just say, “Yes it does!” That would not have been true.

The Constitution in fact allows for considerable overlaps between the branches. So Madison lays out a careful explanation of what Montesquieu meant and how the Constitution satisfies it. All that is required, Madison insisted, that the legislative, executive and judicial functions ought not to be entirely consolidated.

[I]n saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,'' or, "if the power of judging be not separated from the legislative and executive powers,'' [Montesquieu] did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example [of the British system that Montesquieu cited approvingly], can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.

 Throughout the two essays Madison builds a case carefully that the proposed system allows only limited and reasonable overlap. Senators (the legislative branch) sit in judgement of an impeached president or other federal officer (a judicial action), but otherwise leave the courts alone. The president appoints federal judges. The Congress chooses the president in some instances. The Constitutional system would, Madison promised, keep the balance. Interestingly, Madison felt confident that the branch most likely to get out of control was the legislative.

[I]n a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

 Today, that careful balance of roles and responsibilities no longer holds. The three branches no longer stay in their lanes. The Congress did, as Madison cautioned, dominate government for a long period. Woodrow Wilson wrote a book in 1885 called Congressional Government, suggesting how Congress ruled the nation. But that has changed. Now the other two branches are apt to exceed their roles.

 The first example of excess I can suggest is called “Judicial Activism.” Some sources say judicial activism is a judge deciding a case on the basis of his own opinion or personal values rather than the facts of the case or the legal precedent. Judicial activism also happens when a judge gets in the business of legislating or administering government actions. Here are two examples of judicial activism from the past 30 years or so. 

Yonkers, New York in the 1980s had very segregated housing, with white people living in comfortable single-family houses on one side of town, and black and Hispanic residents piled up in dirty, dangerous, high-density public housing on the other side. The city had used federal housing money to build even more densely packed public housing in even smaller tracts, making low-income housing opportunities worse instead of better. The NAACP sued the city. Federal judge Leonard B. Sand got the case, and he ruled that Yonkers had violated federal fair housing laws and misused the money. But Sand didn’t stop with the judicial decision. When he was satisfied that the mayor and city council did not intend to abide by the law, the judge designed his own desegregation plan and compelled the city to build low income housing where he decided they should go. Those actions were definitely legislative and executive. The Yonkers housing desegregation story is told marvelously well in an HBO TV miniseries called “Show Me A Hero.”

 A second example of judicial activism is the school desegregation order placed on Indianapolis schools by federal judge S. Hugh Dillin. Here, again, the judge went beyond the usual judicial role of deciding the city was guilty of discriminatory education policies. He legislated and executed a desegregation order. The greatest difference between Yonkers and Indianapolis is perhaps that, where Sand seemed genuinely intent on helping low-income residents in Yonkers to better housing, it is not at all clear that Dillin aimed to do right by the inner-city, mostly minority people of Indianapolis.

Dillin’s order forced inner city students to ride buses to the suburban schools. No suburban kids had to bus into town. The one-way busing order also shifted money from the city to the suburbs. As a result, Indianapolis schools lost attendance, lost funding, fell into disarray and have not recovered, even though the busing order was cancelled in the ‘90s. Indianapolis inner-city neighborhoods suffered, too, when they lost their schools as a focal point for community activity. The outcome for students may have been better, but only just:

[F]ew students from [indianapolis schools] were found in [after school] activities or clubs. There seemed to be a general feeling among them that they did not "belong" in the suburban school and they preferred to return as soon as possible to their home neighborhood. In later years black students appeared to feel less alien and uncomfortable than in 1981 when busing began, and white students appeared more willing to accept their presence. But one black [student] with a high academic record, while saying he had made a few real friends, said that in general there was little communication between blacks and whites. “It’s more or less, 'Leave us alone and we'll leave you alone.’”

 A Butler University professor, Emma Lou Thornbrough, wrote a long report on the Indianapolis experience in 1993, called The Indianapolis Story: School Segregation and Desegregation in a Northern City.

Both these stories illustrate the judicial branch going way beyond its traditional scope. Presidents also cross lines when they issue “executive orders,” declaring an action or a policy that ought to be decided by Congress.

According to the notion of balance of power, Congress makes laws and the president executes them. Often, the laws Congress approves are not very specific, and the executive branch (the president and the tens of thousands of government bureaucrats), add the details that are missing from the Congressional act.

The Heritage Foundation, in a 2001 report called The Use and Abuse of Executive Orders and Other Presidential Directives, agrees that executive orders can be an example of presidential excess, thought they express it in an odd, worshipful tone. They call it “an enduring gift” and then immediately recognize how it is abused.

One of the great and enduring gifts from the Founders' generation was the inclusion of separation of power principles in the United States Constitution. The Framers had studied the writings of Montesquieu and other political philosophers as well as the workings of the separate branches of their own state governments. Their conscious design to enforce this separation of functions was carefully explained in The Federalist Papers and during the debates over ratification of the United States Constitution. The separation of powers is now enshrined in both the structure of the Constitution and various explicit provisions of Articles I, II, and III.

 Yet, in the previous Administration, a baser motive seemed to prevail in the use of executive power. Former President Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests. If this were not enough, Clinton's top White House political advisers made public statements about his use of executive decrees that were designed to incite a partisan response, saying, for example, that the power was "cool" and promising that he would wield that power to the very end of his term

  Executive orders are not necessarily always presidential overreach. But certainly many are: Franklin D. Roosevelt issued more than 1200 executive orders and quite a few of them were declared unconstitutional in court. The habit of presidents to issues orders, bypassing Congress and making law by personal fiat, ruins the balance between legislative and executive. Madison thought in 1787 that the balance of powers was more clearly defined and more enduring than it has turned out to be.

Discuss:

• Do you worry about good government that gets done the “wrong way?” Was Judge Sand in Yonkers, New York, wrong to take the city’s housing policies into his hands?

• What, in your mind, would be the exact correct balance of power, and how can that be enforced and maintained?

• Would it be possible to stop presidents from legislating, and judges from legislating?