Separation of Powers--Legislative Immunity

19. What should the Court have done in ? Consider these options: (1) Conclude that it had already determined ithad jurisdiction and ignore the repeal act; (2) Consider the act, butholdit inapplicable because it was enacted after oral argument hadoccurred;(3) Hold that the act violated Article I, Section 9, Clause 2 in thatthesuspension of habeas corpus was not required by public safety; (4)Holdthe act violated the Fifth Amendment because it deprived McCardle ofdueprocess of law; (5) Hold the act violates basic separation of powersprinciplesand that Congress cannot curtail the jurisdiction of the Court; (6)Upholdthe act and dismiss the case for want of jurisdiction.

President Zuma and the separation of powers

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . . Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.


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Montesquieu was aware of the problem of ensuring that a system of government so nicely balanced should not result in complete deadlock, that the three bodies, King, Lords, and Commons, by being poised in opposition to each other should not produce merely a state of “repose or inaction.” But he dismissed the problem by arguing that in the nature of things they are forced to move (par le mouvement nécessaire des choses), and forced to move in concert. The question of whether he saw the State as an organic unity in which the articulated parts formed a single unit exercising the sovereign power, or whether he destroyed the unity of sovereignty by dividing it up into parts which were to be distributed among quite distinct, autonomous bodies, related to each other in a mechanistic fashion only, is probably impossible to answer, because it is doubtful if he ever formulated the problem in either of these ways. He seems to have a unitary view of the supreme power when he is discussing his three forms of State in the initial books of De l’Esprit des Loix, but there is little clue to his attitude in Book XI, Chapter 6. On the question of legislative supremacy he seems, though less explicitly, to hold much the same position that we attributed above to John Locke. The legislative function is logically prior to the rest in the sense that the executive and judicial functions are concerned with putting the law into effect; but the legislative branch must be limited in its power to interfere with the acts of the executive branch, otherwise the former will be able to wield arbitrary power. Montesquieu does not, however, emphasize the supremacy of the law, or of the legislative function, to anything like the extent Locke had done, and as a consequence there seems to be a good deal more disagreement between them on this point than was probably the case.


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By 1748, therefore, he had formulated the tripartite division of government functions in a recognizably modern form. A good deal of change still had to take place in the ensuing two hundred years in the exact connotation of these concepts, but basically the pattern was now set. To legislate is to make the law; to execute is to put it into effect; the judicial power is the announcing of what the law is by the settlement of disputes. These functions exhaust all the “powers” of government, and they can be clearly differentiated from each other. Every government act can be put into one or other of these categories. He also established the idea of three branches of government—executive, legislature, and judiciary. So much for the analytical separation of agencies and functions. But to demonstrate that Montesquieu had a “theory of the separation of powers” in one sense or another we must go further. We must show that he maintained that each function should be exercised by the appropriate agency of government, and that he furthermore believed that the personnel of the three branches should not coincide. It will become quite clear at a later stage that he did not maintain the pure doctrine of the separation of powers, for he combined with it the ideas of mixed government and checks and balances; however, that he did advocate that each agency should exercise, in the main, only its own functions, is also perfectly clear. He was quite explicit here:

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Montesquieu devotes considerable attention to the nature and composition of the judiciary, but his approach to this problem is very much a reflection of his general scheme, and does not bear much relation to the actual practice in England. In Book VI he had developed his ideas about the judicial function in the differing forms of State. In a despotic government the caprice of the prince is the basis of the law, and judging will be an arbitrary process without rules. In a monarchy, however, the prince rules according to the laws; these must be relatively stable and applied in a cool, aloof fashion. The judges in a monarchy, therefore (and Montesquieu is clearly thinking of the parlements), must be learned in the law, professional, and skilled in the reconciliation of potentially conflicting rules. But the closer the form of government approaches that of a republic, the more fixed and settled are the rules of law, and the more the judges must follow the letter of the law. In Rome, he avers, the judges had only to decide matters of fact, and then the punishment was clearly to be found in the laws. In England the jury gives its verdict on the facts and the judge pronounces the punishment inflicted by the law, “and for this he needs only to open his eyes.” In Book XI he describes a judicial system without professional judges. He rejects the idea of the judiciary power being lodged in a “standing senate,” and affirms that it should be exercised by persons drawn (tirées) from the people, on an ad hoc basis for fixed periods of short duration. In other words a system of juries, which would apparently be judges of both fact and law, because the laws would be so clear and explicit as to require no professional knowledge in the judges.