Separation of Powers

Separation of Powers
Principles of the powers separation are based on the ideas, which date back to the philosophical and political works of ancient philosopher Aristotle. The main development of these ideas were held in the 18th century in France, held by Charles Montesquieu. His vision of the freedom was expressed as the right to do anything that is not prohibited by the law and could be provided only in the state, where the power is divided on three branches: legislative, executive and juridical. Every of the braches has a certain independence and is counterbalanced by the other branches. The competence of each organ is defined in such a way that it excludes oppression on the other organs. That is one of the main guarantees that help to avoid tyranny.

The principle of the powers’ separation was first used in the United Sates Constitution in 1787. It is a well known fact that the power is an ability to influence upon the others despite their will, sometimes using compulsion. The power is the social event and the state is the form of the political powers organization that is why powers’ category has such a significant impact “he broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers—as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as were thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states” (Cornell University Law School, 2010).

The United States Constitution is one of the oldest and the most stable. The real political powers are separated in this country on the three branches. It should be noted that in some of the parliamentary democracies it often concentrated in the hands of the single head legislative organ. The same time it should be taken into consideration that the authority of the political powers is separated between the national government and the governments of the states (sometimes they cooperate successfully, but sometimes the difficulties are observed). It should be noted that in majority of the European countries the powers are concentrated in the center – in the hands of the national government

It was mentioned earlier that the United States Constitution is one of the oldest still active bourgeois constituitions and one of the most firm and severe: during the 200 years only 26 Amendments were included to it and 10 of them were put in 1791, better known in public as the Bill of Right. In opposite to the juridical constitution according to the investigators opinion there exists “live constitution”. In other words, the constitution of 1787 acts up to the present date with the number of additions, which are represented by the juridical precedents, Congress Laws and Acts of Presidents.

It re regulates the separation of the powers in the country and helps to solve a number of Juridical cases. It should be noted that the three branches that are successfully protecting the country from each other: “In recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly to permit Congress a greater degree of discretion” (Corwin, 1957).

Hence despite the direct separation of powers the confrontation between the state laws and the national laws could be observed in different cases. Gay marriage is one of the most burning questions in this field and perfectly reveal the controversy. When we speak about rights of gays and lesbian, the first thing that comes into mind is the official legislation of the same-sex marriages. There could be hardly found a question that meet so harsh resistance and such emotional argumentations from the opponents’ sides. Gay and lesbian activists concentrated their main attention on legalization of same-sex marriages. But it is considered to be quite a contradictory question as between gays and lesbians themselves there is no full agreement: radical liberals, for example, insist that despite struggling against the broadening of marriage definition, it will be better to concentrate on destroying the institution traditionally considered to be heterosexual.
But anyway marriage is in the centre of discussion and it is not surprising at all. If sexual attraction is the primary (after survival) biological instinct, than having a family is the most important current social necessity of any person, it is essential part of his life. Love unites these two necessities on the level of feelings and emotions, and marriage formalizes and regulates them. That is why marriage discussions, as they have a strong deal with many things in the life of individual, could be hardly be free of any kind of emotions. This question is connected with politics, culture, religion and moral beliefs. The marriage question is strongly connected to all the spheres of life in the present day world. “The Supreme Court in 2003 considered a challenge to a Texas law that criminalized homosexual sodomy, but not heterosexual sodomy. The case, Lawrence v Texas, raised both substantive due process and equal protection issues. Voting 5 to 4, the Court overruled its earlier decision in Bowers v Hardwick and found that the state lacked a legitimate interest in regulating the private sexual conduct of consenting adults. Justice O'Connor added a sixth vote to overturn the conviction, but rested her decision solely on the Equal Protection Clause. Predictably, Justice Scalia dissented, accusing the majority of ‘largely signing on to the so-called homosexual agenda’” (UMKC Law School, 2004). This case perfectly reveals the controversy between the national law and the state law. It goes without saying that the protection of human rights is the primary decision and such precedents as Lawrence v. Texas are among the best illustrations of this confrontation.

References:

1. Cornell University Law School. 2010. CRS Annotated Constitution. Rertrieved Cornell University Law School official web site
2. Corwin E. (1957). The President – Office and Powers 1787-1957. Ch. 1 (4th ed.)
3. UMKC. (2004). Exploring Constitutional Conflicts. University of Missouri-Kansas City. Kansas City, MO

Separation of Powers 9.1 of 10 on the basis of 1886 Review.