Herron: Separate and not equal

by Jason Herron

My entire adult life I thought America had, “Three Separate but Equal” branches of government. I heard it so often and from such a variety of people that I never questioned it. I’m now absolutely convinced that statement isn’t true and here’s a bird’s eye view as to how I came to that conclusion. 

The thirteen original colonies conceded specific (enumerated) powers to form our federal government. Articles I, II, and III of our Constitution explain the powers that were authorized which formed our Legislative, Executive, and Judicial branches. 

Our Constitution grants very limited, albeit necessary, authorities to operate our federal government. It is so specific that the first three articles combined, are less than 3700 words. Article I is just over 2200, while Article II is less than half of that at just over 1000 words. Article III, the judicial branch, is less than 380 words.

Jason Herron

Since the Constitution is a document that grants enumerated authorities, the word count alone would indicate that the legislative branch has been given more authority than the other two combined, but let’s look a little closer.

Article I states that Congress can: Lay and collect Taxes, Borrow Money, Coin Money, Establish Post Offices, Declare War, and many more.

Article II sets out the enumerated powers of the executive branch. Although the President can make treaties, it is only with the advice and consent of the Senate, He can also nominate Ambassadors, judges, and other public officers, but they can only be appointed by and with the advice and consent of the Senate. 

So, two of the presidents enumerated powers can only be fully exercised with the advice and consent of the senate. To add, the senate can also impeach a president which skews power even further towards congress.

It seems clear that congress has an unequal amount of power when compared to the executive, but what about the judicial branch? Article III, explains role of the judiciary:

The judicial Power (…) shall be vested in one supreme Court, (…) as the Congress may from time to time ordain and establish. The Judges, (…), shall hold their Offices during good Behaviour, and shall, (…), receive (…), a Compensation, which shall not be diminished during their Continuance in Office.

So, according to our Constitution, Congress establishes the Supreme Court. Congress is also the body that ultimately appoints and sets the pay for the justices. Congress also has the authority to impeach a judge if they misbehave. That scenario is not indicative of an equal role nor, as Alexander Hamilton will explain, was it ever intended to be.

Hamilton was a delegate from New York to the Constitutional Convention and was one of its 39 signers. Along with far too many other accolades to mention, Alexander also helped author the Federalist Papers. 

These were a series of newspaper articles addressed to the residents of New York explaining the purpose and rational for adopting a Federal Constitution. The People of New York, along with the twelve other colonies were still debating whether they wanted to adopt the Constitution.  

Many of the colonists were understandably concerned about the judicial branch becoming an arm for tyranny. One of the grievances they listed in the Declaration of Independence states: He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. 

Attempting to persuade the residents of New York that they had nothing to fear from the Judicial branch under our Constitution, Hamilton wrote in Federalist NO. 78:

The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse;(…). It may truly be said to have neither FORCE nor WILL, but merely judgment;(…).

The three branches that form our federal government are clearly not co-equal, yet I was led to believe this my entire life. How are we expected to be self-governing citizens without being taught the fundamental principles behind the three branches of government? Imagine asking someone to play baseball without enlightening them on the true rules of the game. 

Author is a Vermont maple farmer and is co-owner of Lakeridge Maple Farm, and a passionate advocate for the Constitution..

Categories: Commentary, Congress

1 reply »

  1. Thank you, Jason, for your well written article about the constitution and the role of government in our country. We so need to get back to a balance in power and not let the politicians take our freedoms away from us. Thank you for advocating for a much needed look at our wonderful heritage of a balance of power.