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January 01, 2019

Learning Gateways: Separate Powers: Comparing Constitutions

In this activity, students will analyze historical readings about the system of separated powers, or checks and balances, outlined in the U.S. Constitution. They may then use the database of the Comparative Constitutions Project to locate constitutions from around the world to explore other countries’ systems of checks and balances.

Historical Readings on Separated Powers, and Checks and Balances

Excerpt from “The Histories, Book 6” by Polybius (264-146 B.C.E.)

Such being the power that each part has of hampering the others or co-operating with them, their union is adequate to all emergencies, so that it is impossible to find a better political system than this. For whenever the menace of some common danger from abroad compels them to act in concord and support each other, so great does the strength of the state become … For when one part having grown out of proportion to the others aims at supremacy and tends to become too predominant, it is evident that, as for the reasons above given none of the three is absolute, but the purpose of the one can be counterworked and thwarted by the others, none of them will excessively outgrow the others or treat them with contempt.

Excerpt from “The Spirit of Laws, Chapter 6: Of the Constitution of England,” by Charles Baron de Montesquieu (1748)

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

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 be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of 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

Excerpt from “Federalist Papers: No. 48, These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other,” by James Madison (1788)

… It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?

Activity Procedure

1. Ask students to read the historical texts, either in class, or in advance of the activity, and discuss the following questions:

  • What do each of the texts suggest about power, or structuring government powers?
  • How do the government powers check or balance one another in these examples?
  • When was each of the texts written? Do you think that the earlier ones might have influenced the later ones?

2. Next, direct students’ attention to the U.S. Constitution. Ask students to discuss what they know about the structure of the U.S. Constitution and the U.S. government according to the Constitution. If needed, offer guidance about the organization of the U.S. Constitution, and what is contained in each article. Review Articles 1-3, in particular, which discuss the legislative, executive, and judicial branches of the federal government.

3. Ask students to discuss the U.S. Constitution and organization of the federal government:

  • What are the benefits of having a government with separated powers and a system of checks and balances?
  • What challenges arise with the same system?
  • Considering the readings, how does the system outlined in the U.S. Constitution draw on historical ideas?

4. Invite students to look at constitutions from other countries around the world using the Comparative Constitutions Project database. Working individually, or with a partner, allow students time to search for and compare world constitutions. It might be appropriate to offer students some guidance on how to navigate the site and use its features to look at constitutions, literally, side by side.

5. Ask students to identify one other national constitution, not from the United States, that exhibits some form of government structure. Explain to students that they may need to read through several constitutions to find an example that they want to use for this activity. Students should compare their selected constitution to the U.S. Constitution:

  • What country is the constitution from? Where is the country located?
  • How is the constitution organized?
  • What kind of national government does the constitution outline?
  • What types of power does the constitution discuss, and how is it distributed among government leaders?
  • How is the government described in the constitution similar to or different from the government outlined in the U.S. Constitution? How might these similarities or differences affect a system of checks and balances in the country?
  • Are there other observations about the constitution that stand out to you?

6. To wrap up this activity, ask students to sketch diagrams, or basic organizational charts, of the government outlined by their non-U.S. Constitution.

Notes on Adapting this Activity

If students participating in this activity are unfamiliar with the organization of the U.S. Constitution, or the concepts of separated powers or checks and balances, this activity offers an opportunity to delve more deeply into these concepts before proceeding with a comparison of other world constitutions. Simply focusing on the text of the U.S. Constitution, as in Step 3 of the activity, might be valuable.

Looking at the state constitution of your state, and organization of state government, might also be appropriate. Students could compare and contrast their state government with the federal model.