Website Note: This article has been published in the 2002 Issue 6 of the Journal of China Youth University of Political Science
Abstract: The formation of the separation of powers in the United States has gone through a tortuous and complicated process. The lessons of legislative autocracy during the federal period led to the formation of the institutional framework of separation of powers in the 1787 U.S. Constitution. The separation of powers is a rational choice made by the founders of the United States. It has played a positive role in the development of the United States, but it also has a negative impact.
Keywords: U.S. Constitution; separation of powers; checks and balances; Congress; president
The memory left to us by U.S. President Clinton during his term in office may not only be the U.S. economy under his leadership What may be more striking is the continuing development of the scandal that shocked the world and the ensuing impeachment case in Congress. It is this impeachment case that allows us to see the complexity and effectiveness of the mutual restraints of power in the United States' system of separation of powers. It also allows us to understand the founding fathers of the United States who formulated this system and maintained it for more than 200 years while still having strong vitality. I admire you for your foresight. Now, let us look back at the formation process of this system.
1. Ideological Origins
The idea of ??decentralization in the West has a long history. Aristotle’s theory of mixed government in ancient Greece is usually considered to be the earliest theory of decentralization. bud. He proposed that the country has deliberative power, administrative power, and judicial power, and believed that the governance of the country depends on whether the three powers are coordinated. Aristotle's purpose is to create a system that takes into account the interests of the rich and the poor by analyzing the three elements of the government, so as to achieve a balance between the various classes of society, thereby preventing abnormal government (tyrant, oligarchy and civilian government). ) appears. However, his theory of mixed government focuses on the balance of interests of various classes in society, rather than the separation and balance of power among national political institutions. Therefore, it is different from the theory of "separation of powers" in the modern sense in terms of specific connotation and The substantive content is very different. However, even so, his thoughts have surpassed the times in which he lived, laying the ideological foundation for the emergence of modern decentralization ideas. In the more than 1,000 years after Aristotle's genius thought shined, although Polybius, Cicero, Marsilius and others also proposed the theory of mixed government, in general, the idea of ??decentralization did not has not been developed further.
It was not until the publication of "Treatise of Government" by the famous British thinker Locke in the 17th century that the theory of decentralization in the modern sense was initially formed. Locke has a detailed discussion of the theory of separation of powers in the second part of "Treatise of Government". He divided state power into legislative power, administrative power and external power, and believed that these three powers should be exercised by different state organs. Following Locke, the French Enlightenment thinker Montesquieu further developed the theory of separation of powers and proposed the famous "separation of powers" theory. In "The Spirit of the Laws", he divided the power of the state into three types: legislative power, executive power and judicial power. The so-called separation of powers means that through legal provisions, the three types of state power are handed over to three different state organs, which not only maintain their respective authority, but also check and balance each other. He believes: "Everyone with power is prone to abuse power. This is an eternal experience... To prevent the abuse of power, power must be used to restrict power." [1] Therefore, in his thought of separation of powers, It emphasizes the idea of ??checks and balances of power, and prevents the abuse of power and the infringement of power on people's freedoms and rights through the separation and checks and balances of power. These ideas of decentralization, especially the principles of democratic politics embodied in them, were widely spread in the British North American colonies. After the anti-British struggle in the colonies became increasingly intense, various newspapers, magazines and pamphlets widely publicized the doctrines of European Enlightenment thinkers, making the ideas of democratic politics and decentralization of powers more deeply rooted in the hearts of the people. The separation of powers has moved from theory to reality in the United States.
2. The Confederation Period - Lessons from Legislative Despotism
During the formation of the United States of America, it went through a period of Confederation. This period refers to the period when the Articles of Confederation served as the basic national law of the United States. Although this period was short, it had an important influence on the subsequent formation of the separation of powers system in the United States.
After the Declaration of Independence was issued, the 13 British colonial states in North America realized the importance of uniting with each other and forming a country during their struggle against Britain. Therefore, based on the common desire to unite, The Continental Congress formulated the Articles of Confederation and Permanent Union (referred to as the "Articles of Confederation") in 1777, which came into effect in 1781 after being approved by the state parliaments.
The government established according to the Articles of Confederation did not implement separation of powers, but established a unicameral Congress. Moreover, the central government had very little power and local governments had great power. Therefore, "the system at that time It is just an alliance of almost completely independent units, not a unified country in the modern sense.” [2] (p56) The formation of this system reflected the American people’s fear of administrative autocratic government at that time.
During the Confederation period, in order to prevent administrative autocracy, the local states established a decentralized system in accordance with Montesquieu's doctrine of decentralization. However, when they put this doctrine into practice, they did not really understand the spirit of this doctrine, which is to prevent the abuse of power. The state's decentralized system only has decentralization of power, without checks and balances, and the distribution of power is also uneven, giving the main power of the government to the legislative body. They do this, on the one hand, out of fear of administrative autocracy, and on the other hand, out of trust in the legislative body, believing that only the legislative body is the refuge of people's freedom. Therefore, the Parliament is not only the highest legislative body of the state, but also de facto the highest authority of the state. This imbalance in the distribution of power and the lack of mutual checks allow state legislatures to continue to abuse their power without scruples. As a result, state legislatures continue to infringe upon the powers of other branches, often in unconstitutional ways. Jefferson, who once served as governor of Virginia, understood this well. He commented: "The whole power of the government, legislative, executive and judicial, are concentrated in the legislative body. To concentrate these powers in the same body is precisely Definition of tyrannical government. The fact that these powers are exercised by the majority rather than by one person does not lessen the degree of tyranny."[3]
< p> The lessons of legislative autocracy have provided valuable experience to American political leaders, allowing them to wake up from the simple doctrine of separation of powers and realize the importance of mutual checks and balances between powers. From then on, checks and balances were given the same importance as separation of powers, and were expressed through the 1787 Constitution.3. The Constitution of 1787 - the formation of the framework of the separation of powers system
The government established according to the Articles of Confederation was able to maintain the unity of the 13 states during the Anti-British War. of unity and unity. But after the peace treaty with Britain was concluded in 1783, the external force that pushed the 13 states together disappeared. The increasing centrifugal tendencies of the states put the Confederacy on the verge of splitting. At the same time, due to growing dissatisfaction with the legislative autocracy within the states, revising the Articles of Confederation, establishing a strong central government and a new system of separation of powers were put on the agenda. The Shays' Rebellion in 1786 accelerated this process.
In 1787, 55 representatives from 12 states except Rhode Island gathered in Philadelphia to discuss changes to the Articles of Confederation. However, after in-depth discussions, the representatives found that merely amending the Articles of Confederation could no longer meet the requirements of reality. Therefore, they decided to turn this constitutional revision meeting into a constitutional convention to formulate a new constitution for the United States. This resulted in the famous "Constitution of 1787". This constitution was born on the basis of a series of contentious discussions and compromises and the achievement of basic political knowledge. In the process of formulating the Constitution, there were serious differences between various interest groups - large state groups and small state groups, conservatives and democrats, etc. They launched fierce struggles around various issues, with the focus concentrated on the large states. and small states on the allocation of representation in future Congresses. In addition, the struggle between the South and the North over the issue of slavery had arisen. After three months of debate on these issues, several famous compromises were reached - "the Compromise between the large and small states on representation in Congress, the South and the North on how to count slaves for taxation and representation" On the basis of the compromise between the North and the South on the regulation and taxation of foreign trade" (4), the Constitutional Convention finally formulated a new constitution - the "1787 Constitution".
The people who created the U.S. Constitution and worked for its adoption believed: "The dream of a just and free society will become a reality if the appropriate institutions can be established. Power is certainly necessary , but power is also dangerous. Only by maintaining a moderate balance of power among various institutions can power be properly implemented and at the same time restrain those in power from abusing power. A national government should be established that has sufficient power to exercise management power, but the government's Power must also be limited, and ultimately power must belong to the citizens, who exercise power through directly or indirectly elected representatives and appointed officials.” [2] (p60) According to this idea, the most important principle of the American Constitution is to establish. “Separation of powers” ??limited government. “The government should be governed by an elected executive, that is, the president. The president is in charge of the executive branch and various administrative agencies. The president is completely independent of the legislative branch of Congress and does not have to be accountable to Congress. These two departments are also coupled with the highest authority. The judicial branch headed by the courts... Each branch has its own scope of power and restricts the power of the other two branches. "[2] (p63-64) The U.S. Constitution is clear. Puts Congress at the center of government power, but even in Congress there are oversight and constraints because Congress itself is divided into two houses - the Senate and the House of Representatives, and both houses must approve all laws unanimously. The president is responsible for the enforcement of the law, and the courts adjudicate disputes regarding legal issues. This is the political system of the “separation of three powers” ??of the U.S. government that checks and balances each other.
(1) Congress - the legislative authority. "In every society, some basic principles must be determined through certain channels to regulate the relationship between each member of society and between each member and the group. In the modern political system, it is the legislative process, By designating a certain group as the rule-maker for the entire public, the law is finally passed." [2] (p183) This is the function of the U.S. Congress as a legislative body.
The powers of the U.S. Congress are clearly defined in the U.S. Constitution, including the power to establish taxes and collect taxes, to borrow money, to regulate commerce, to coin currency, to determine weights and measurement standards, and to establish The postal system, the power to create a judicial system, the power to delineate federal territories, regulate copyrights and patents, declare war, raise funds for the U.S. military, and provide for a standing militia. The power of Congress is broad, but it also has limitations. The U.S. Constitution specifically specifies some limits. For example, Congress cannot pass any law that abridges freedom of speech or the press, and cannot pass civil deprivation bills (which only allow the legislative body to punish citizens without Laws that are not judicial penalties), laws that are not ex post facto (laws that punish acts that occurred before the law was passed), etc.
(2) Executive departments of the government and the president-the executive authority. The basic function of the U.S. executive branch is to implement laws and policies and undertake the daily work of the government. The executive branch implements a presidential responsibility system. Ministers, deputy ministers, assistant secretaries, administrators, directors, and members of regulatory committees are appointed by the president and approved by the Senate; the president does not require Senate approval to remove them from their posts. All ministries, departments and bureaus implement the responsibility system of ministers, directors and directors. Today, the president is the center and most powerful figure in American politics. The U.S. Constitution stipulates: "Executive power belongs to the President of the United States of America." The office of the president is single, independent of Congress, and elected by voters nationwide. The president's military and diplomatic powers are directly granted by the Constitution. The presidential term is 4 years and the president may not be re-elected more than twice. According to the U.S. Constitution, the president has the power to supervise the execution of laws, appoint and remove government officials, conclude treaties, and have the power of war (excluding the power to declare war). While the Constitution grants the president the above-mentioned powers, it also imposes restrictions. For example, the appointment of senior government officials must be approved by the Senate; for a bill vetoed by the president, the House and Senate have the power to re-pass it with the consent of more than 2/3 of the members; if the president fails The time limit for the use of troops in foreign operations declared by Congress shall not exceed 90 days, etc. The most fatal restriction on the president is that the U.S. Constitution grants Congress the power to remove government officials, including the president. The House of Representatives "solely has the power of impeachment"; the Senate "solely has the full power to try all cases of impeachment" [5].
(3) Court - judicial authority. “Institutionally, the judicial process is in a sense a key part of the political system.
Whatever form the judicial system takes, its basic political role is the same—to help society control (rather than eliminate) conflict… Respect for the law is the lifeblood of the political order. "[2](p281-282)
There are two parallel court systems in the United States - the federal court system and the state court system. The two court systems have their own jurisdiction in terms of functions and are not subordinate in organization. Relationship. Both have the power of judicial review. Any court has the power to interpret the U.S. Constitution and rule that any law, administrative order, or regulation is unconstitutional or even invalid. The decision of the Federal Supreme Court is the final ruling. The prosecutorial agencies and various types of police to which it belongs are an integral part of the judicial power of the United States and the actual embodiment of enforcing the law. The restrictions on judicial power are mainly reflected in the fact that Congress and the states can use constitutional amendments to overturn the Supreme Court's ruling; it is re-adopted. The court declares a law unconstitutional; potentially having the power to determine the jurisdiction of lower courts and the appellate jurisdiction of the Supreme Court.
The judges of the U.S. Supreme Court play a pivotal role in judicial power and judicial proceedings. Justices are appointed by the President and approved by the Senate. Their salaries are higher than those of other government officials, and their tenure cannot be reduced. The U.S. Constitution imposes clear restrictions on the conduct of judges. Judges are not allowed to serve in a political organization during their tenure. While holding office, they are not allowed to participate in running for public office, make speeches or make public donations to a political organization or its candidates, or participate in political rallies.
Congress has the sole power to impeach judges from the above-mentioned institutions. From a theoretical point of view, in theory: (1) Congress, the President and the Supreme Court have legislative, executive and judicial powers respectively. It can be seen that under the presidential system, the legislative, executive and judicial powers are on an equal footing and are not subordinate to each other. Separate. (2) Legislative power, executive power and judicial power are mutually restrained and balanced. This is the "transmission device" or "connection link" through which the powers of the three separate departments can operate as a whole. It can be seen that in name only the president. Congress only has executive power, but actually has some legislative power. Congress only has legislative power in name, but actually has the means to influence executive power and judicial power. Similarly, the Supreme Court also uses "constitutional review" as a form of "judicial discretion." Participate in "legislation" and influence administrative behavior. In this way, in a government system with extremely complex power relations, various powers operate in an orderly manner through mutual penetration and restraint.