Nina Kaushikkar: Separation of Powers and Factional Control

Nina Kaushikkar

October 2nd, 2015

AP Government and Politics

Gordon, Period 3

The theory of separate powers is a cure to blocking factional control.

A French theorist named Montesquieu developed the idea of the separation of powers, in which a government was controlled by dividing it up into distinct branches rather than investing all of the power in a single entity (Patterson, 38). In his work The Spirit of the Laws, he argued in favor of four individual points. First, he noted that if the legislative and executive bodies were combined, they would limit freedom by being too tyrannical of a power. His second point was that a combination of the legislative body and the judiciary would lead to a meaningless interpretation of the laws, because the lawmaker would become his own interpreter, and he would not look at it with an impartial eye. Third, he asserted that the combination of the executive branch and the judiciary would cause the process of doling out justice appropriately to be meaningless, because the executive power then becomes his own judge. The fourth and final point that he raised was that the consolidation of all three powers into one body would greatly limit freedom because the concentration of power would become too large. Decades later, Montesquieu’s theory formed part of the basis for the creation of the US federal government.

James Madison, a Federalist delegate to the Second Constitutional Convention, and later the 4th President of the United States, supported Montesquieu’s ideas about the separation of powers, like most of the delegates. However, there was an additional concern that needed to be addressed: factions. Madison, in Federalist No. 10, defined a faction as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” He further expounds upon the “mischiefs of faction,” stating that to cure factional control, it would be necessary to either remove its causes or control the impacts. Because it is impossible to eliminate the root of the creation of factions, Madison determined that a government must subvert a faction’s effects, particularly if that faction lies within the majority. In Federalist No. 10, he offers two methods of doing so: first, through ensuring that the existence of the same interest within a majority is void or second, through controlling the power of the majority through the principle of limited government so that the majority is unable to be an oppressor.

The theory of the separation of powers fits Madison’s solutions as outlined in the Federalist Papers, particularly with the framers’ addition of a system of checks and balances. Separating the power of a government into different branches rather than concentrating it into a single entity in the way that Montesquieu explains meets the first of Madison’s solutions. This is because when the powers of a government are divided, it is difficult for a factional majority to exist in the first place, thereby eliminating the threat of any one branch gaining so much power as to have the ability to suppress the freedoms of others. The second solution is created through the framers’ idea of combining Montesquieu’s theory of the separation of powers with a system of checks and balances. While the theory of the separation of powers alone makes it so that it is impossible for power to be concentrated in any singular entity, adding the system of checks and balances controls a faction within a majority should it exist in a branch of government. This is because giving other branches the power to control the capacity of each of the other divisions of government ensures that a faction within a majority cannot use its power to restrict the rights other others.

As such, the framers of the Constitution utilized Montesquieu’s theory of the separation of powers to form the basis for the government of the United States, and by combining this theory with a system of checks and balances, they created a cure to factional control.