Locke emphasized this wasn’t merely a warning – it was a binding limitation:
“The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed,…”
That power? It’s to make laws – not to make law-makers.
“…which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.”
And James Wilson – one of the leading framers and first associate justices on the Supreme Court – explained that same principle as essential to the Constitution as well:
“Congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.”
Locke considered this principle so fundamental that he included it as one of four critical rules for legislatures everywhere:
“The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.”
Luke Wake may have summed up these principles best:
“Therefore, as the agent of the People, the Legislature cannot sub-delegate its entrusted powers to anyone else without violating the trust that the People have conferred in the legislative assemblage.”
THE REASON BEHIND SEPARATION
No one articulated the need for strict separation of powers more effectively than “the celebrated Montesquieu,” whose work profoundly influenced the Founders:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…”
Why? Because the threat is clear:
“…because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
MADISON’S AMENDMENT
In the First Congress, James Madison proposed an amendment to create a brand new Article VII to hammer this home. It included a separation of powers – and a precursor to the Tenth Amendment:
“The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.”
And:
“The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.”
Roger Sherman objected to Madison’s proposed amendment, arguing it was “altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department.”
Madison agreed that the structure was already clear. But he supported the amendment anyway – not because it was legally necessary, but because it was politically wise. Many of the amendments he introduced were drawn directly from the demands made by Anti-Federalists during ratification.
So even if he saw no ambiguity, Madison believed that – since “the powers ought to be separate and distinct” – a clear statement could help resolve lingering doubts and ease the fears of opponents.
In the end, the amendment didn’t pass. There’s no record explaining exactly why. Maybe most sided with Sherman. Or maybe Madison’s effort at reassurance just didn’t carry the day.
But one thing remained clear: both Sherman and Madison believed the powers of each branch were meant to remain separate – and neither saw any room for one branch to hand off its constitutional duties to another.
THE MODERN BREAKDOWN
So, what happened? How did we go from a Constitution with strict separation of powers to what we have today?
Michael Rappaport explains the turning point:
“It was 85 years ago that the Supreme Court used the doctrine to strike down important delegations of legislative power in a few cases during the New Deal.”
But that didn’t last long.
“But the doctrine fell prey to the New Deal judicial revolution. With the appointment of New Deal justices, the Supreme Court started to apply the doctrine extremely leniently to allow enormous delegations of policymaking discretion to the executive.”
And that shift has only solidified over time.
“Since the New Deal, no delegations reviewed by the Court – and there have been many – have been struck down as unconstitutional.”
And in the five years since Rappoport wrote that, things have not turned around.
Aaron Gordon reveals how dramatic the consequences have been:
“Today, however, the foremost source of rules governing private conduct at the federal level is not Congress, but rather administrative agencies.”
That alone should set off alarms. But it gets even worse.
“Between 1976 and 2015, the number of pages of statutory law enacted annually grew from just over 4,000 to about 6,200, while pages of administrative regulation soared from 12,600 to nearly 24,700.”
In other words – regulations exploded, and Congress wasn’t the one writing them.
“The U.S. Code currently stands at about 22 million words, while the Code of Federal Regulations now exceeds 103 million.”
That’s nearly five times more legally binding “law” from the executive branch than from the people’s so-called representatives in Congress.
