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A New Approach to the Principle of the Separation of Powers Yun, Myung-Sun During the framing of the Federal Constitution of 1787, there was already a widely accepted notion that the separation of powers should be an essential ingredient of constitutional government. To the Framers, a commingling of powers appeared to be the very definition of tyranny. To secure a 'limited government', the governmental powers are, horizontally and vertically, divided into three distinct powers or functions - legislative, executive and judicial - as exercised by three independent organs. But the water-tight division of functions was impossible in practice as well as in theory such that a pragmatic mixture of governmental functions was adopted in the Constitution. The separation of powers required separate and equal branches, with each performing a blend of functioning, thereby balancing and sometimes coordinating between those branches. Prior to Montesquieu, Locke divided governmental powers only into two - the legislative and the executive, and the judicial function belonged to the executive power. Montesquieu, however, saw the necessity of separating the judiciary from the executive and the legislative organs in order to secure individual liberty. Therefore, he for the first time divided governmental power into three functions which he attributed to three independent organs, the legislative, the executive and the judiciary. To prevent the abuse of powers, there should be some constitutional means to resist encroachments by others; that is the principle of 'checks and balances'. The idea of 'mixed government' which was rooted in the class-based structure of society dominated his theory; this is entirely different from the situation of the U. S. A. There was thus a need of modification in applying his theory to American society. A government is an 'organism' with work to do between organs - branches. The issue of the 'borderland', in particular, between the President and Congress, was left to political practice, although some principles are prescribed in the Constitution. The contest between the three organs did and still does go on from day to day with varying result. From 1787 to the Civil War, Congress was predominant organ of the government. By the turn of the century, in particular, with the 'constitutional revolution' under President F. D. R., there has been the gradual expansion of executive power, resulting in 'imperial presidency' and 'personalization of powers'. Therefore, the President assumed more initiative in the exercise of the governmental powers, the resolution of conflicts and the development of public policies. While the strict checks and balances doctrine has thus far contributed to protecting individual liberties, it also negatively worked to result in weakening of political leadership, a drop in efficiency of administration and irresponsibility to the people. If the President is occupied by one party and the majority of the Congress is taken by another, the politics used to go a deadlock. The issue of a 'divided government' remains a crucial tension point in the constitutional structure, thereby there has been consistently raised 'constitutional reform' without success. The failure to reform the constitutional structure was mainly due to the strong commitment to existing system and to the difficult process of amendment. Whatever the consequences, those powers should be sufficiently diffused and the legal mechanism should be clearly provided to protect individual liberty.


A New Approach to the Principle of the Separation of Powers Yun, Myung-Sun During the framing of the Federal Constitution of 1787, there was already a widely accepted notion that the separation of powers should be an essential ingredient of constitutional government. To the Framers, a commingling of powers appeared to be the very definition of tyranny. To secure a 'limited government', the governmental powers are, horizontally and vertically, divided into three distinct powers or functions - legislative, executive and judicial - as exercised by three independent organs. But the water-tight division of functions was impossible in practice as well as in theory such that a pragmatic mixture of governmental functions was adopted in the Constitution. The separation of powers required separate and equal branches, with each performing a blend of functioning, thereby balancing and sometimes coordinating between those branches. Prior to Montesquieu, Locke divided governmental powers only into two - the legislative and the executive, and the judicial function belonged to the executive power. Montesquieu, however, saw the necessity of separating the judiciary from the executive and the legislative organs in order to secure individual liberty. Therefore, he for the first time divided governmental power into three functions which he attributed to three independent organs, the legislative, the executive and the judiciary. To prevent the abuse of powers, there should be some constitutional means to resist encroachments by others; that is the principle of 'checks and balances'. The idea of 'mixed government' which was rooted in the class-based structure of society dominated his theory; this is entirely different from the situation of the U. S. A. There was thus a need of modification in applying his theory to American society. A government is an 'organism' with work to do between organs - branches. The issue of the 'borderland', in particular, between the President and Congress, was left to political practice, although some principles are prescribed in the Constitution. The contest between the three organs did and still does go on from day to day with varying result. From 1787 to the Civil War, Congress was predominant organ of the government. By the turn of the century, in particular, with the 'constitutional revolution' under President F. D. R., there has been the gradual expansion of executive power, resulting in 'imperial presidency' and 'personalization of powers'. Therefore, the President assumed more initiative in the exercise of the governmental powers, the resolution of conflicts and the development of public policies. While the strict checks and balances doctrine has thus far contributed to protecting individual liberties, it also negatively worked to result in weakening of political leadership, a drop in efficiency of administration and irresponsibility to the people. If the President is occupied by one party and the majority of the Congress is taken by another, the politics used to go a deadlock. The issue of a 'divided government' remains a crucial tension point in the constitutional structure, thereby there has been consistently raised 'constitutional reform' without success. The failure to reform the constitutional structure was mainly due to the strong commitment to existing system and to the difficult process of amendment. Whatever the consequences, those powers should be sufficiently diffused and the legal mechanism should be clearly provided to protect individual liberty.