A Quick Separation-Of-Powers Historical Footnote

[ Posted Tuesday, October 18th, 2011 – 17:07 UTC ]

[Program Note: I don't have time to fully develop this theme today, due to spending all day researching. But I was struck by the comment when I heard Gingrich make it on Face The Nation last Sunday, because I had just read an extraordinary quote on the same matter. Today, an article appeared which delved into the past, but not far back enough to fully flesh out the subject. So I thought I'd toss this out there for further debate.]

This past Sunday, Newt Gingrich made an extraordinary statement on CBS' Sunday political chatfest. This was, apparently, a restatement of an even stronger position he had just taken.

To see the original statement, and a discussion of the history behind it, please read Lyle Denniston's column in today's Huffington Post.

The issue of what, exactly, "three co-equal branches" means in American government -- and, more importantly, what happens when two of them disagree -- goes back a long way. Further than Franklin Roosevelt, further even than Abraham Lincoln. The first president to truly tangle with the Supreme Court was actually Andrew Jackson, who fought the court on two separate issues: Jackson's policy of "Indian removal," and the Second Bank of the United States. The first one is where Jackson responded (according to legend -- he may not have actually said this) to a court ruling against him: "John Marshall has made his decision; now let him enforce it!" By doing so, Jackson was stating his open defiance of a Supreme Court decision, and pointing out that the Executive Branch actually controlled the levers of federal power, and not the Judicial Branch.

But it is the second issue where Jackson fully laid down the gauntlet in the power struggle between the two branches. When Congress tried to force Jackson to sign a bill extending the charter of the Bank, Jackson instead vetoed it. His entire veto message is fascinating, not only for the separation-of-powers tug of war, but because it is one of the best and earliest examples of what would later be called "class warfare." Imagine the howls which the following would provoke, if President Obama said anything even close to it:

It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes. Distinctions in society wilt always exist under every just government. Equality of talents, of education, or of wealth cannot be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society -- the farmers, mechanics, and laborers -- who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their government. There are no necessary evils in government, Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.

Getting back to the subject at hand, however, Jackson minced no words in what his understanding of the separation of powers truly meant to him, as president:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this government. 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 or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. 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 when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Which is, pretty much, what Newt Gingrich just said. I'm not saying I agree or disagree with either Newt or Andy Jackson, I am merely tossing this historical quote into the fray.

Discuss among yourselves.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


5 Comments on “A Quick Separation-Of-Powers Historical Footnote”

  1. [1] 
    Michale wrote:

    This raises an interesting point.

    On the one hand, I can see the point in that each third of the government must decide for themselves what the Constitution means to them..

    On the other hand, if the three parts agree that the Judicial Branch is the "Keeper Of The Faith" and it's function is to interpret the Constitution for the other two branches, then there is an implied agreement that the other two branches will abide by the edicts of the Judicial Branch.

    Fascinating debate...


  2. [2] 
    LewDan wrote:

    Andy had it exactly right. Federal office-holders swear an oath to uphold the U.S. Constitution not Supreme Court decisions.

    The founders explicitly denied the court enforcement powers. the Executive has the military, the Congress has the purse, the Court has only the strength of its arguments, its reputation for apolitical objectivity, and its public support. (All of which are exceedingly weakened by recent Court decisions.)

    The Constitution did not give the court the right to "interpret the Constitution." It was expected that each branch of government would become corrupt in time. The hope that two branches acting in concert could compel the third, that the executive and legislative each have powerful, distinct, and yet mutually dependent means of enforcement while the court is uniquely largely immune to the vagaries of politics and public opinion but positioned to powerfully influence both would create a dynamic tension which would be self-limiting. No one ever thought the Supreme Court would somehow be magically immune to corruption. Unfortunately the rise in power of political parties and the willingness of politicians and voters alike to give allegiance to others before country and constitution effectively neutralize the intended "checks and balances" of all three branches on occasion.

    The Courts traditional role interpreting the Constitution is a result of a Marshall Court constitutional coup not a Constitutional mandate. It has stood because the other two branches have largely declined to challenge Supreme Court decisions and the public too has accepted them; but while successfully challenging Supreme Court interpretations of the Constitution is exceptionally difficult, as it should be, the Court is not, in fact, the only branch for whom there is no constitutional "check." And while impeachment is the constitutional remedy against abuses by individual Justices its the Executive and Legislative branches who are the ultimate remedy against abuses by the Court itself, in conjunction with public opinion and each federal office-holders individual personal oath to uphold the U.S. Constitution not the edicts of the Court, the Presidency, or the Congress.

    Each of the three branches of government derive their authority from the U.S. Constitution. If the Constitution is no longer controlling then none of the government has any "legal" authority; and while precedents may be binding as law as long as the court accepts them, the court has no authority to amend the Constitution through "precedents" or any other means; only the method explicitly outlined in the Constitution may amend the Constitution. That means the three branches of government are coequal and not subservient to the Court and its decisions, just as they were before the Marshall Court's constitutional coup.

  3. [3] 
    dsws wrote:

    I've got no use for Andrew Jackson. He was violent, domineering, pro-slavery, and genocidal. He was the prototype of ultra-right-wing populism, getting the lower-class whites to be on the side of the planter aristocracy. As a military commander, he executed civilians without due process, even when his own kangaroo court said not to.

    There's plenty of "check" on the Court. Congress can change the laws under which it decides cases. Congress can increase the size of the Court. Its members are appointed by the president, by and with the advice and consent of the Senate. It decides only individual cases, and has the capacity to handle only as many cases as its members can actually hear and deliberate on, in person. It has no bureaucracy, no police, no army, but has power only via its own legitimacy. Thus it faces a strong pressure not to take any action that would undermine that legitimacy. That is the strongest check faced by any branch.

    There have been countless very bad laws and very bad decisions in the executive branch, but only two or three Supreme Court cases are truly infamous.

  4. [4] 
    Chris Weigant wrote:

    LewDan -

    I have to admit, I am fascinated by the separation of powers struggles in American history. Nicholas Biddle, writing to Henry Clay, said of Jackson's veto message it was "a manifesto of anarchy," but then he had a lot of skin in this game, since he was the Bank's president at the time.

    Jackson was right, but American politicians aren't ever supposed to point this out, because it is a serious lack in the Constitution itself -- the checks and balances aren't always laid out with clear boundary lines. Marshall did stage a "coup" of sorts (I would call it a "massive power grab" myself), but it's one we've all sort of agreed to abide by ever since -- except when it comes out into the open as with Jackson's comment. The Constitution is indeed silent on most of where the power fault lines should be between the branches, except possibly for impeachment (and even that has left what "high crimes and misdemeanors" are supposed to cover wide open). These power struggles mostly play out between Executive and Legislative -- as when Bush ignored quite a few subpoenas from Congress for testimony -- leaving the question in limbo who was right and who was wrong. The War Powers Act of 1973 is another one that springs to mind -- neither branch has ever felt strongly enough about their position to test it in the courts. As I said, it's a fascinating subject because it never really gets resolved to anyone's satisfaction. Which is, in essence, what Jackson was saying.

    dsws -

    Yeah, Jackson was a character, alright. Don't forget the duels he fought -- he was of the "I demand satisfaction, Sir!" school of Southern gentleman (actually, at the time, he was considered a "Western" gentleman, due to KY and TN being considered the "West", but I digress). Oh, and if you're cataloguing his sins, don't forget the adultery and bigamy charges as well. Also, that bit about singlehandedly starting a war with Spain (and gaining Florida as a result). Heh. Or his first inaugural party....

    But I would disagree on the "only two or three" SCOTUS cases which are truly infamous. There are a lot more than that -- starting with Schenck v. US

    Everyone knows the phrases "falsely shouting 'fire' in a theater" (the "crowded" was added later and is not in the original), and "clear and present danger" but few know the case both came from.

    Depends on what you call "infamous" too -- one man's Citizens United is another man's Roe v. Wade, in other words. To say nothing of Bush v. Gore.


  5. [5] 
    dsws wrote:

    I didn't forget the adultery/bigamy thing, but I didn't count it as worth including either. On the scale of bad stuff Jackson did, it's pretty small potatoes. The duels were part and parcel of his violent habits.

    Biddle and Jackson deserved each other, but the country didn't. They represented a struggle between a ruthless elite and a downright vicious elite. It's kind of like how today the Republicans count on getting people to hate the Ph Ds so much they hand power to the MBAs, and the Democrats wish that people would object to the MBAs enough to hand power to the Ph Ds.

    Everyone can name Dred Scott and Bush v Gore. Citizens United is bad, but doesn't necessarily sink to the same level: I was thinking of it as the "or three". No question Schenk was bad. I don't remember why it didn't make the same impression on me when I heard about it a while back.

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