May 1 is Law Day, and this year’s celebration of the rule of law has its eyes on the separation of powers doctrine.
“The U.S. Constitution sets out a system of government with distinct and independent branches—Congress, the Presidency, and a Supreme Court,” reads the ABA’s Law Day site. “It also defines legislative, executive, and judicial powers and outlines how they interact. These three separate branches share power, and each branch serves as a check on the power of the others.
” ‘Ambition must be made to counteract ambition,’ James Madison explained in Federalist 51. Why? Madison believed that the Constitution’s principles of separation of powers and checks and balances preserve political liberty. They provide a framework for freedom. Yet, this framework is not self-executing. We the people must continually act to ensure that our constitutional democracy endures, preserving our liberties and advancing our rights.
“The Law Day 2018 theme enables us to reflect on the separation of powers as fundamental to our constitutional purpose and to consider how our governmental system is working for ourselves and our posterity.”
Quimbee on Separation of Powers
In its series of videos on Supreme Court cases, Quimbee has covered a number of important decisions concerning separation of powers.
- Horse majeure – justices opine that equine farm suit’s out of time (Plaut v. Spendthrift Farms, Inc.)
- Civil commitment ruled the Necessary and Proper thing to do (United States v. Comstock)
- Congress’ power-up to the president finds staying power in SCOTUS (United States v. Curtiss-Wright Export Corp.)
- Facing deportation, one immigrant took his case to SCOTUS – and won (Immigration and Naturalization Service v. Chadha)
- What were an American’s rights after the 9/11 attacks? (Hamdi v. Rumsfeld)
- Congress makes Exceptions that doom editor (Ex parte McCardle)
- Independent counsels born of Watergate, upheld in Morrison v. Olson
News from the ABA Journal
- ABA marks 60th anniversary of Law Day with focus on separation of powers
- The executive branch pushes the boundaries of the separation of powers
- Hilarie Bass — Law Day 2018: The Balance of Power
- ABA president denounces judicial impeachment threat, points to Law Day theme
ABA marks Law Day
ABA President Hilarie Bass, in her Law Day letter, writes:
The phrase “separation of powers” does not appear anywhere in the text of the U.S. Constitution, yet it is likely one of the most important concepts in understanding how the U.S. government is designed to defend the liberties that Americans had fought the Revolutionary War to achieve.
When the Framers gathered at the Constitutional Convention in Philadelphia in 1787 to consider how to revise the Articles of Confederation, they widely agreed that the new government should not have too much power. Otherwise, it would threaten the freedom of the people. To limit the power of the national government, the Framers decided to divide power within it. As James Madison wrote in The Federalist #47, “The accumulation of all powers, legislative, executive, judiciary…may justly be pronounced the very definition of ‘tyranny.’”
A divided federal government, he explained, was “stamped with the authority of more enlightened patrons of liberty.” Likewise, Thomas Jefferson called the distribution of power “the first principle of good government.”
The Framers emerged from the Convention having drafted a constitution that created a national government consisting of three branches—executive, legislative, and judicial. Each branch was to be separate from the other, but each would retain distinct powers that the other branches did not have. In order for the government to work properly, all three branches were needed, and no one branch was to have too much power.
Without this separation, one Supreme Court justice wrote, “the Bill of Rights would be worthless.” The Constitutional structure of our three-part government provides a framework for our freedom, preserving liberty and advancing our rights.
A workable structure for the government alone, however, is not sufficient to protect the rights and liberties of the people. For that to occur requires an engaged citizenry. Each of us as individuals has a responsibility to act to ensure that our government works properly and protects the freedom of the people. Making the effort to be an informed citizen; contacting your local, state, and national representatives about issues that are important to you; attending town hall meetings; and most importantly voting; all help to ensure that all levels of our government serve the people. We are also called upon to respect the rights of others when they exercise their freedom of speech or their freedom of religion, and to unwaveringly defend the freedom of the press.
The Law Day 2018 theme enables us to reflect on the principles of separation of powers and our role in the government as citizens. Let us take this opportunity in the coming year to consider how power is shared in our government and how we can work together to preserve our liberties and advance our rights.
Bass will discuss the separation of powers with Law Librarian of Congress Jane Sánchez, as part of the library’s Law Day event today at 3 p.m. ET.
The ABA will celebrate Law Day in Washington, D.C., with two other programs — a student dialogue on the separation of powers at 10 a.m. at the United States Navy Memorial, followed by the 16th Annual Leon Jaworski Public Program at 6 p.m. at the National Press Club. Bass will be presiding along with moderator Stephen Wermiel, professor of Practice of Law at American University Washington College of Law. Speaking on the for side will be Mickey Edwards, vice president of The Aspen Institute and Former U.S. Representative from Oklahoma; and Victoria Nourse, professor of Law and Director at the Center for Congressional Studies at Georgetown University Law Center. On the against side will be Edward L. Rubin, professor of Law and Political Science and Former Dean at Vanderbilt University Law School; and Laura Donohue, professor of Law and Director at the Center on National Security and the Law, Georgetown University Law Center.
More events are available on the ABA’s Law Day calendar.
Presidential Proclamation
The White House’s Presidential Law Day proclamation reads:
About Law Day
Envisioned in 1957 by then-ABA President Charles S. Rhyne as a national day to recognize the country’s commitment to the rule of law, Law Day was established by President Dwight Eisenhower the following year. Congress issued a joint resolution in 1961 designating May 1 as the official Law Day. Many civic groups and bar associations celebrate with a month of programs, presentations and events.
Visit the ABA’s Law Day website for Law Day resources and visit the 2018 event calendar to learn about Law Day programs scheduled throughout the country.