America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
SEPARATION OF CIVIL POWERS
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For the Lord is our judge, the Lord is our lawgiver, the Lord is our king; He will save us. [Isaiah 33:22]
It is evident from the previous discussion of federalism that civil power is capable of residing in different persons for different purposes, yet can be wielded over the same people at the same time. The discussion so far has focused on vertical diversity of civil power, that is, local versus national governments. But the power wielded by any single civil government, whether local or national, is not all of the same type. In the American federal republic system, civil power is not designed to be wielded by any single person or body at either the state or national level. Rather, civil power has been diffused among a variety of offices in order to protect the people from being ruled by a tyrant.
NATURE DEFINES THREE TYPES OF CIVIL POWER
The law of nature teaches that there are three basic kinds of power within any civil government: legislative, executive and judicial. Thus, there is a unity of power vested in each civil government, whether local or national, but also a diversity of power within each civil government. The experience of history teaches that man governs best when each of these types of civil power is vested in a different body of persons. This principle of horizontal unity and diversity among civil powers, or the separation of powers, will now be explored.
Isaiah 33:22 indicates that all civil authority is not of the same nature. “The Lord is our judge” refers to judicial power, “the Lord is our lawgiver” refers to legislative power, and “the Lord is our king” refers to executive power. This scripture is not merely a descriptive statement, but a normative one as well, stating a legal distinction between kinds of civil power. It also contains a promise that God, the supreme judicial, legislative and executive authority, will exercise His power lawfully, for the verse concludes with “He will save us.” Since God’s rule is always just, separation of powers within the Godhead is unnecessary, even though there is a difference in the kind of powers exercised.
The testimony of Jesus, the King of kings, is that He will perfectly fulfill the law of judicial, legislative and executive power. For example, Isaiah 51:4 says, “Pay attention to Me, O My people; and give ear to Me, O My nation; For a law will go forth from Me, and I will set My justice for a light of the peoples.” Hence, divine legislative power will be exercised lawfully, and justice will be embodied in the law. Isaiah 51:5 says, “My righteousness is near, My salvation has gone forth, and My arms will judge the peoples; the coastland will wait for Me, and for My arm they will wait expectantly.” Jesus will judge the nations perfectly, and make His judgment perfectly known among the peoples. Also, in Isaiah 51:7-8, the Lord promises to execute that judgment perfectly:
“Listen to Me, you who know righteousness, a people in whose heart is My law; Do not fear the reproach of man, neither be dismayed at their revilings. For the moth will eat them like a garment, and the grub will eat them like wool. But My righteousness shall be forever, and My salvation to all generations.”
Following this pattern, God desires for man to exercise legislative, executive and judicial power in accordance with law. Romans 13:1 states that every person should “be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God.” That is, God has established the threefold nature of power in the civil realm of men as He has in His own realm. Romans 13:4 specifies that the civil ruler is a “minister of God, an avenger who brings wrath upon the one who practices evil.” Thus, all civil officers are ministers of God, and bound by the law of God respecting civil power.
The history of Israel demonstrates both the law of the nature of separation of powers among men, and its wisdom. Following the exodus from Egypt, Moses exercised all three types of civil power in his capacity as judge of the people. Moses exercised the national executive power by leading the people in battle as “Commander-in-Chief” of the army. Exodus 17:8-13 relates how Israel waged war against the Amalekites. Moses gave the fighting orders, then stationed himself on the top of the hill apart from the battle with the staff of God in his hand. His arms were lifted up, awaiting the victory from the Lord. The example of the judges after Moses is similar. From Joshua to Samuel, the judge led the army into battle and delivered the nation from its enemies.
Moses also exercised the legislative power in Israel by being the “law-bearer” for the nation. That is, he bore the law of God to the people in the form of the Ten Commandments and corresponding statutes under them. The act of bearing the law is illustrated by Moses bringing the tablets of stone to the people in Exodus 31:18, and by his discoursing the statutes of God in Deuteronomy. Moses, however, did not alter God’s law or expand its scope. That is, Moses did not actually devise any statutes or ordinances for Israel himself. He merely reported what God told him verbatim, and exercised no independent legislative will while bearing the law.
The judges after Moses exercised little, if any, legislative power. This was not because someone other than the judge exercised legislative power instead. Rather, all the laws of Israel presumably came directly from God, who retained the legislative power in Israel. If the leaders of Israel did exercise any legislative power, it certainly had to be exercised independently of the executive and judicial powers. How it was exercised is not clear from the biblical record, though it had to conform to the law given to the nation of Israel through Moses.
There is only a suggestion in Joshua 9 that perhaps the elders or the princes of the congregation exercised legislative power consistent with the law of nature and the nation’s covenant. The Gibeonites, who occupied part of the Promised Land Israel was to conquer, deceived Joshua and the people into making a treaty sparing the Gibeonites from destruction. The treaty was negotiated by Joshua as judge, but Joshua 9:15 indicates that the treaty was ratified by the leaders of the people by an oath. Thus, when the deception was found out, the people were bound to keep the oath and spare the Gibeonites, notwithstanding the deceit, as reported in Joshua 9:19.
There is an analogy between Joshua 9 and the U.S. Constitution, Article II, Section 2, Clause 2, which provides that the President has the power to make treaties, “by and with the Advice and Consent of the Senate.” That is, until the President obtains legislative approval, his arrangement with another nation is a mere “executive agreement.” The agreement does not become a “treaty” until the Senate approves it. An executive agreement has no binding force or effect within the United States, but a treaty is part of the “supreme law of the land” pursuant to Article VI of the Constitution.
Similarly, when the leaders of Israel ratified Joshua’s treaty, it was made part of the supreme law of the land, which could not be disobeyed. The leaders of Israel did not themselves set the terms of the treaty, but by their act alone did the treaty become a law binding upon the people. Thus, it was the representatives of the people, not the judge acting as executive, who made the treaty law.
As one would expect, Moses exercised judicial power as judge, in addition to executive and legislative power. Exodus 18:13-16 describes how he judged the disputes among the people according to “the statutes of God and His laws.” Similarly, from Joshua to Samuel, the judge was vested with and exercised all three kinds of civil power in Israel. A more detailed description of the nature of executive, legislative and judicial powers exercised in Israel will be presented in the next two chapters.
The lawful exercise of civil power was to be the hallmark of all judges, as evidenced in Joshua 1:8. “This book of the law shall not depart from your mouth, but you shall meditate on it day and night, so that you may be careful to do according to all that is written in it; for then you will make your way prosperous, and then you will have success.” The testimony of Judges 2:7 is that Israel served the Lord all the days of Joshua and the elders who survived him, because they had seen “all the great work of the Lord which He had done for Israel.” Thus, Joshua was true not only to the threefold division of civil powers, but true to the law governing the exercise of those powers.
However, this adherence to law deteriorated over time. When Samson was judge, he cried to the Lord in Judges 16:28 to give him strength to “be avenged of the Philistines for my two eyes.” Samson had exercised civil power for his own personal purposes, rather than for national purposes. Not surprisingly, the book of Judges concludes with the statement, “In those days there was no king in Israel; everyone did what was right in his own eyes.” In the legacy of the judges in Israel, the law of the nature of separation of powers was not functioning the way God had intended it to.
Consistent with this pattern of abuse, when the elders of Israel asked for a king, they asked for one who would exercise all three types of civil power, that is, a king like all the other nations had. This is evidenced by the warnings given by Samuel as to the “procedure of the king,” i.e., the warnings of a tyrannical ruler. However, God did not fulfill Israel’s request for a king with a tyrannical ruler. Rather, He gave Israel a king who exercised only executive authority. At that time, the civil powers in Israel had become separated by office, as well as by nature.
Therefore, all the judicial power remained in the office of judge, and was not transferred to the king. 1 Samuel 7:15 says that Samuel retained the judicial power in Israel “all the days of his life,” which included the days of Saul. In fact, none of the kings in Israel were ever vested with judicial power. But, the executive power which was previously vested in the judge now resided with the king. Saul, not Samuel, led the army against the Ammonites in 1 Samuel 11. And Saul, not Samuel, led the army against the Amalekites in 1 Samuel 15.
No legislative power was conveyed to Saul or his successor kings, either. 1 Samuel 15 indicates Saul had no authority to change the rules of war, prescribed in Deuteronomy 20, which required him to wage battle as a judgment of God upon the Amalekites. When Saul disregarded that law, sparing the Amalekite king and the best of the sheep, Samuel declared Saul in violation of the law. Whatever actual law-making powers existed in Israel after Saul was made king were not vested in the office of king.
This law of the separation of powers governed all subsequent kings in Israel and Judah. Whenever the king exercised not only executive power, but also legislative or judicial power, he usurped civil authority rightfully belonging to another, incurring judgment. Israel no longer had any judge after the manner of Moses or Joshua, who had been instituted by God and vested with all three kinds of civil power. Remember, the judges were not asked for or appointed by the people, although each judge ruled by consent. Once the office of king had been asked for and instituted among the people, the law of separation of powers operated to separate the powers by office, as well as by nature.
THE COMMON LAW AND THE LAW OF NATURE
There is a common law heritage of England and America which testifies about the nature of the law governing separation of powers, affirming the biblical understanding. Embodied in this heritage is a recognition of man’s fallen nature, and his inevitable tendency toward tyranny when vested with all types of power simultaneously. This has produced wisdom to the effect that the separation of powers among men is a matter of virtue. In the 13th century, Bracton was a jurist now referred to as the “father of the common law” by John C. H. Wu, a scholar of the common law. Bracton penned words which live on in this nation today:
The king himself ought not to be under man, but under God and under the law, because the law makes the king. Therefore, let the king render back to the law what the law gives to him, namely dominion and power, for there is no king where will and not law wields dominion.
In other words, “right makes might,” not “might makes right.” In effect, Bracton was affirming Judges 18:1, which said there was no king in Israel. It was not that there was an absence of the exercise of executive power, but that the executive power being exercised was contrary to law. And as Bracton said, there is no king where will, not law, wields dominion. Thus, the common law heritage is that executive power must be used lawfully, or it is not executive power at all.
It is often true that once an important rule of law is established, God in His providence will order circumstances to test whether the legal “faith” will be put into practice. Indeed, England was tested whether the king was under man or under the law of God in the early 17th century. Sir Edward Coke, who John C. H. Wu calls the “savior of the common law,” declared that the law of nature was part of the law of England. He believed that all civil power was under the law of God, namely, the law of nature, not under man. And he had opportunity to make this claim before James I, then king of England.
King James had read 1 Kings 3:16-28 and found that Solomon judged a case between two women to determine to whom a baby belonged. King James interpreted this scripture to mean that he could exercise judicial power as king. But Solomon did not exercise judicial power; he exercised executive judgment. After all, Solomon never intended that the baby be killed when he ordered him to be cut in two. Deuteronomy 17:8-13 indicates that when a judge issues an order to a person, it must be carried out or else the person acts presumptuously. In other words, a person under the order of a court will be held in contempt if the order is not obeyed. Although Solomon exercised righteous judgment, he did not usurp judicial authority, because his judgment was executive in nature.
Sir Coke told the king that on this basis the king had no judicial power, for which James I charged Coke with treason. Coke replied, “I say that Bracton saith that the king must not be under any man, but under God and the law.” Interestingly, the power of his judgment prevailed, and Coke was spared execution. God honored Coke’s willingness to stand for what is right, affirming that “right makes might.”
Similarly, Samuel Rutherford wrote in Lex Rex, in 1644, that the king was under the law which governed executive power, basing his conclusion on an analysis of 1 Samuel 8. One of the primary reasons the Court of the Star Chamber was abolished in England in 1641 was that broad and undefined executive, legislative and judicial powers were vested in that single body. And, the legacy of Coke was continued by Blackstone, who wrote in his Commentaries that judges are depositories of the laws, living oracles, bound by oath to decide according to the law of the land. Thus, the nature of all civil power, whether executive, legislative or judicial, is governed by law.
The law of separated powers was part of the legacy our forefathers brought into America under the colonial charters, under the name of the “rights and liberties of Englishmen.” And yet the colonists faced the same challenge with King George III as Coke faced with James I. Once again the executive threatened the independence of the judiciary in an attempt to govern America under the charters. The Declaration of Independence lists as one of the grievances against the king, that he “has obstructed the administration of justice by refusing to assent to laws for establishing judicial powers. He has made judges depending on his will alone for the tenure of their offices and the amount of payment of their salaries.”
SEPARATION OF POWERS IS A MATTER OF VIRTUE
Yet, there is evidence in addition to the Declaration that the colonists were interested in protecting the judiciary from usurpations by the executive. The doctrine of separation of powers in America was forcefully advocated by John Adams. He claimed that the law of separation of powers was not merely a matter of political expediency, nor just a matter of checks and balances because of the sin of mankind, but was a matter of virtue as part of the law of nature to assure a government of laws, not of men. He wrote, in 1775, that:
Nothing is more certain, from the history of nations and nature of man, than that some forms of government are better fitted for being well administered than others. . . . If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?
. . .
A representation of the people in one assembly being obtained, a question arises, whether all the powers of government, legislative, executive and judicial, shall be left in this body? I think a people cannot be long free, nor even happy, whose government is in one assembly.
Adams claimed there was a link between “virtue” and the law governing separation of powers. This claim is analogous to Mark 5:25-34, which tells how a woman who had a hemorrhage touched the hem of Jesus’ garment, and in some translations, “virtue” flowed from Jesus to heal her. The Greek word used in the biblical text is the word for “power,” but the translators realized that any power flowing from Jesus would be lawful, thus virtuous. In the same way, a separation of powers which is based upon virtue acknowledges there is a law governing the allocation of powers. The Constitution of Massachusetts of 1780, Article XXX, affirmed that the exercise of civil powers was governed by law:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end that it may be a government of laws and not of men.
Throughout the early state constitutions, there is a continual affirmation of the horizontal unity and diversity among civil powers. That is, civil power is divisible into judicial, executive and legislative powers, and the separation of these powers is a matter of virtue, governed by law. This separation is most evident in the treatment of the judiciary, as compared to the other two branches. We have already seen how the independence of the judiciary was continually threatened by executive encroachment. Thus, the state constitutions took great pains to insulate the judiciary from this kind of abuse.
The Constitution of Virginia, dated June, 1776, provided “That the legislative and executive powers of the State should be separate and distinct from the judiciary,” and that only members of the first two were to be subject to election by the people. The Delaware Declaration of Rights of 1776 provides that, “the independency and uprightness of judges are essential to the impartial administration of justice.” The Constitution of Maryland of 1776 stipulated that, “Judges ought to hold commissions during good behavior,” and that liberal salaries were to be secured during the term of judicial commissions. Similar provisions are found in other early state constitutions. The necessity for, and implications of, an independent judiciary will be discussed in chapter 6.
THE U.S. CONSTITUTION FOLLOWS THE LAW OF NATURE
Following the pattern of the state constitutions, the U.S. Constitution provides for a separation of civil powers, both in describing the three kinds of power, and also in providing for a law distinguishing between the kinds of power. The first sentence of Article I refers to legislative power and vests it in Congress. Article II of the U.S. Constitution provides that “The executive Power shall be vested in a President of the United States of America.” Similarly, Article III deals with judicial power and vests it in the Supreme Court. The members of the first two branches are elected by the people, either directly or indirectly, for a specified term of years, whereas judges are appointed for terms during good behavior.
Not only is the principle of horizontal unity and diversity evident in the structural relationship among the branches of the national government, it is evident within each of the branches. This application of horizontal unity and diversity of power can be clearly seen in the legislative branch. The unity of Congress is that all federal legislative powers are vested in it, as contrasted with the federal executive and judicial departments. But Congress is itself very diverse. The Constitution embodies the principle of bicameralism, that is, a legislature composed of two houses, the House of Representatives and the Senate. The powers of each house are not identical. For example, all revenue bills must originate in the House, but all treaties must be ratified by the Senate.
Each house of Congress in turn has its own unity and diversity. The constituency of each house is elected from the members of diverse state entities, and in this sense the constituency of each house is similar. But, there is diversity in the way states elect the members of the two houses. Representatives are elected directly by the people in each state according to districts set by population. Senators were formerly elected by the state legislatures, and though now elected popularly, are chosen by the people of the state at large, not by district, and thus evidences diversity from the House.
Even within the executive branch, the principle of unity and diversity is evident. That is, the President enjoys the unity of executive power, but there is diversity in the process by which he is elected. The whole people vote for the candidate of their choice, but the vote which actually elects the President is cast by special electors, members of the “electoral college,” who are chosen by the states. In this way, both the people and the states participate in the election.
The federal judiciary is not subject to political processes, so the principle of horizontal unity and diversity is less evident in that branch compared to the other two. Yet, there are distinctions of jurisdiction among federal courts which reflect this principle. For example, the Supreme Court has original jurisdiction in all cases affecting ambassadors, etc., whereas other cases must originate in a lower federal court.
THE INDEPENDENT DUTY TO INTERPRET THE CONSTITUTION
A logical corollary to the separation of powers is the independent duty of each branch of government to determine matters of constitutional law affecting its operations within its jurisdictional sphere. In other words, constitutional interpretation is not the exclusive province of the judiciary. In fact, the U.S. Constitution, rather than leaving the matter to implication, charges all officers of the United States with the duty to “support this Constitution” pursuant to Article VI, Clause 3. This places the President and the members of Congress under a duty to interpret the Constitution, which they cannot relegate to the Supreme Court or another body without violating the conditions of their offices.
There is a modern heresy prevailing in the nation that the Supreme Court alone can decide questions of constitutional law. Even Chief Justice Marshall never claimed that the Supreme Court enjoyed this exclusive duty or authority. In Marbury v. Madison he twice stated that the Constitution governed the courts to the same extent as the legislature and executive. He further disclaimed any judicial power to make a “political rule” which bound other civil officers, leaving the exercise of politics to the other branches of government.
[W]here the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.
This view was shared by President Andrew Jackson. In the case of McCulloch v. Maryland, the Supreme Court affirmed Congress’ authority to incorporate a bank. But when Congress later extended the charter of the bank, Jackson vetoed the measure with these remarks:
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent. . . . The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill . . . as it is of the supreme judges when it may be brought before them for judicial decision.
President Abraham Lincoln agreed with Marshall and Jackson. In 1857 the Supreme Court held that Negro slavery was protected by the Constitution from the efforts of Congress to prevent its spread into new states. The Court ruled in Dred Scott that black men had no rights that white men were bound to respect. In his famous debates with Stephen Douglas, Lincoln contended he was not bound by the Court’s ruling because he had not been a party to the case. “We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free . . . but we nevertheless do oppose that decision as a political rule which shall be binding on . . . the members of Congress or the President.”
In his first inaugural address as President, Lincoln justified his opposition to the Court’s opinion as follows:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Not until after the New Deal did the President and Congress assume that the Court has the exclusive right to determine the constitutionality of their acts. That deference is a product of Presidential and Congressional neglect of their independent duty and authority to judge whether their actions conform to the Constitution. In recent years, there has even been a tendency for Congress to explicitly state, in the wording of an act, that its operation is conditioned upon approval by the Supreme Court.
Clearly, this ought not to be the case. It is time to return to a proper understanding of the duty of each branch of government to exercise an independent interpretation of the Constitution, and to call federal officers into account who fail to discharge this duty. We must remember the wise counsel of President Jackson:
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive. . . but to have only such influence as the force of their reasoning may deserve.
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* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.