Separation of Powers

Called Unto Liberty, J. Reuben Clark Jr., 20th Century Sermons

The Framers, in the Government they provided for, separated the three functions of government, and set each of them up as a separate branch—the legislative, the executive and the judicial. Each was wholly independent of the other. No one of them might encroach upon the other.(9) No one of them might delegate its power to another.(10)

Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. These branches stood together, supported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches—legislative, executive and judicial—and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. The Framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle.

The people, not an Emperor or a small group, were to make the laws through their representatives chosen by them. To make sure the representatives did not get out of hand,(11) they were elected for short terms of office. The people could, at short [p. 81] intervals, displace unsatisfactory representatives and elect others to take their places. The will of the people, not the will of an Emperor, was to control.

Furthermore, the people specified in the great document, the matters about which their representatives could make laws. The sovereign power was in the people, and the legislative branch could go only so far as they authorized.(12) They lodged in the Congress the sole power to make laws about the matters they entrusted to them, and none others. This is basic, elemental. There is a tendency to overlook it. [See Article I, Sec. 1, of Constitution on P. 524.]

As already stated, the whole residuum of legislative power rested in the sovereign people, and the Congress could not enter that reserved domain without express authorization from the people. This is the principle that operates to declare a law un constitutional. We, the people, have all this power in our hands, if we but exercise it . . . .

The Convention (Washington was its president) provided for the election by the people of their chief executive—a President—for a limited term. Under the influence of Washington’s lofty patriotism, they failed to think it necessary to provide limitations upon re-election. But, mindful of the lessons of history, the Convention, representing the people, bestowed upon their President certain specific powers, only. He had none they did not bestow. They bestowed upon the chief executive all the executive powers they gave to anybody. Here, also, all the residuum executive powers were retained by the sovereign people. If the executive is lawfully to exercise any further powers, these powers must be bestowed by the people. The President is not a sovereign emperor, yet in the executive department is lodged all the executive power, which, by the Constitution, the people gave up to government.

As a check upon the legislative branch, the people, under the Constitution, gave the chief executive certain limited legislative functions; he reports the needs of the country to Congress, he can recommend legislation, he can veto bills of Congress, but Congress can pass these bills over his veto.

That the President might not acquire too much power in his executing of the laws, the people imposed certain limitations upon his powers of appointment to office by providing that [p. 82] the Senate must advise and consent to certain of the more important appointments.

To the same point of further checking the executive power, in legislative matters, the people provided, through their representatives at the Convention, certain restrictions to his conduct of foreign affairs, by providing that treaties must be ratified by the Senate. Moreover, our diplomatic representatives can be properly appointed only by and with the advice and consent of the Senate.

Thus, while the President is given certain powers with respect to the enactment of legislation, the Congress is given certain powers with respect to the administration of the government. These arrangements are sometimes spoken of as checks and balances, and if they are observed, they prevent any encroachment by one branch of the government against another,(13) or upon the rights and privileges which the people reserve to themselves.

The people, through their representatives at the Convention, provided for a judiciary which was to judge the laws, to determine, first, whether the laws were in agreement with or in derogation of the powers conferred upon the federal government, and, second, to determine the respective rights of litigants under the law. All the judicial powers of the government were to be exercised by the courts.

Here, also, safeguards were provided. The President nominates the various judicial officers, but the Senate must advise and consent to their appointment. The legislative branch and the executive branch cooperate in the setting up of the judiciary, which, however, once created, acts independently of either of the others.

There is no provision in the Constitution giving general authority to either branch to function in the field of the other, except as specifically provided; nor is either branch (except as specifically provided otherwise) to delegate any of its powers to the other. These two principles are elemental. So long as these principles are observed, our liberties and our free institutions are secure, and no despotism can be set up amongst us. [p. 83]

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Source: J. Reuben Clark Jr., The Church News, November 29th 1952. J. Reuben Clark Jr. (1871–1961), served as a mem­ber of the First Pres­i­dency of The Church of Jesus Christ of Latter-day Saints, 1931–1961. Prior to his full-time church ser­vice he was assis­tant solic­i­tor to the State Depart­ment, worked in the Attor­ney General’s office, Under Sec­re­tary of State, the author of the clas­sic study, the “Clark Mem­o­ran­dum on the Mon­roe Doc­trine” and U.S. ambas­sador to Mex­ico. Among those who knew his work best, J. Reuben Clark was rec­og­nized as the fore­most con­sti­tu­tional scholar of the 20th Century.