July 30, 2025
Judicial Activism and the Separation of Powers
By Anthony Matoria
The separation of powers is the fundamental organizing principle of our Constitution. The express purpose of separating the functions of government into three distinct departments is to impair the natural tendencies of governments to degenerate into authoritarianism. This was explicitly acknowledged by James Madison in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary into the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.
The separation of powers was incorporated into the structure of the Constitution. An intra-branch check on the legislative authority is provided by dividing that authority between the House of Representatives and the Senate. The Constitution provided for an intra-branch check within the judicial branch through appellate review. These were in addition to the inter-branch checks such as judicial review, the power of appointment and impeachment, and the constraints imposed by the spending power of Congress. The intent of all these was the same: to resist the tendency toward authoritarianism.
The people who drafted and ratified the Constitution knew that the separation of powers, by itself, was an imperfect and insufficient impediment to authoritarianism and tyranny. It required a system of checks and balances that could itself be abused to violate the spirit, and defeat the purpose, of separating powers.
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https://www.americanthinker.com/articles/2025/07/judicial_activism_and_the_separation_of_powers.html
