The Spirit Of The Law Analysis

Political thinkers Rousseau, Locke and Montesqieu claimed that the powers of government should be limited, divided and checked. The principle is that there should be a division of government executive, legislative and judiciary powers into three separate arms or institutions that act separately and are independent of one another (members of one branch cannot be members of either of the other two). Australia’s constitution separated powers by delegating the legislative power to Federal parliament (s.1), executive power to the Governor General (s.61) and the Judiciary to the High Court (s.71). However due to Westminster conventions (adopted from the British system of parliament) commonly practiced by the Australia government, the members of the executive (cabinet) are selected from the legislative by the Prime Minister (going against the concept of having no cross-branched members). The PM (also Westminster convention) is not mentioned in the constitution and yet exercised executive power; for example in 2003 PM John Howard exercises (s.68) by sending troops to Iraq. The constitution also provides the executive with the power to appoint the High Court Judge (s.72) and thus is could be argued that the executive has power over the Judiciary in that sense; However the constitution actively safeguards the position of the Judiciary by stating the High Court Judge “Shall not be removed except by the Governor-General in Council, on an address from both Houses of the

With comparison between a small and large government, James Madison argues that a larger government, like the one proposed by the new United States Constitution, would protect from the tyranny of the majority that would likely be the result of maintaining a small government. He argues that voters are more likely to elect “fit” representatives, as compared to the higher corruption plausibility present in a smaller government. Madison formulates an important argument in favor of the government presented by the Constitution.

Lastly, it is impossible for any certain branch to gain too much power because of something called “checks and balances”. With checks and balances, each branch has the power to cancel another out and keep its power balanced. “In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.” Here, James Madison is stating that first, the issue is to convince the people that they need laws for the country to run properly and smoothly, and second is to explain to the people that the educated elite will not receive too much power. This will be achieved by giving each branch the power to overrule one another. For example, the legislative branch can impeach the president and Supreme Court, the president vetoes laws and nominates the Supreme Court, and the Supreme Court declares laws and acts unconstitutional. This way, not one single branch will be the main source of government.

In order to have a stable government one must first be able to separate its powers equally among its members. James Madison explains how he wants the government to be broken down into three branches, the legislative, executive and judicial branch. This is the case in order to not give anyone more power than the other and to keep members from having little to no communication with members of other branches. Madison wrote Federalist 51 in 1788 in order to state his opinion on how he thinks the powers of government should be handled and distributed. He also talks about his concerns of what could happen if the government is not secure and the troubles that could occur. Madison while writing this essay is wanting to convey what he thinks a powerful government needs in order to survive and have as little problem as possible. He highlights on the powers of the legislative branch should and should not have. In this argument Madison is speaking of how the governments power should be given equally towards each branch because he believes that power can not be controlled by one branch alone.

The three branches of government also known as the legislative, judicial, and executive, helped guard against tyranny, by separation of powers. The main idea of a quote by James Madison states that, all three branches of government lean on each other, yet have separate but equal powers. (Document B) Separation of powers, created by the three branches of government, helped guard against tyranny, by allowing the three divisions to lean on each other, so that if one group did something that went out of hand, they could do something about it. In James Madison’s Federalist Paper #47, he states that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may be justly pronounced the very definition of tyranny… (L)iberty requires that the three great departments of power should be separate and distinct.” The beginning of the quote defines the outcome of what would happen if one person or group were to accumulate all the powers of the legislative, executive, and judiciary. The ending of the quote states that if liberty is wanted, the three

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

With the concept of majority tyranny in mind, the founder’s, including Madison, divided the power of the government into three different branches. The need

The power of the federal government is essentially unlimited, but the scope of this power is clearly defined. For example, in Federalist 23, Hamilton states, “Congress have an unlimited discretion to make requisitions of men and money.” The federal government has virtually unlimited power but a narrow realm of influence. To ensure a limited government, the powers allowed to the federal government are enumerated in Article 1, Section 8 of the Constitution. While the Framers established enumerated powers to guard against an overall tyrannical government, they also created institutional mechanisms to prevent popular rule, faction rule, or branch domination. A republican form of government was established to inhibit a single faction or the majority from abusing power. Madison, in Federalist 10, says that a republican form of government “promises the cure for which we are seeking.” Representatives serve to both “guard against the cabals of a few” and “guard against the confusion of a multitude.” Madison recognizes that an “enlightened statesman will not always be at the helm” and thus there must be institutional protections. These institutional barriers such as enumerated powers, the separation of powers, and check and balances, help guard again an abuse of power. The Framers valued freedom and therefore sought a limited government with protections against

Montesquieu was a nobleman, a judge in a French court and one of the most influential political thinkers in all time. He mostly had the greatest contribution to the idea of the American government. This amazing philosopher came up with the idea that in every government there are three sorts of power which are the legislative, executive and the judicial. This idea is what we are currently using here in the United States of America. The legislative branch makes laws and approves presidential appointments.

Madison shows throughout Federalist 47,48, and 51 that men are not perfect and as such maintaining a system of government is inherently challenging. Madison makes many arguments for ratification one of these arguments focuses on how the american system follows a system of checks and balances supported by the enlightenment philosophies of Montesquieu. Following this Madison argues that to avoid tyranny those who administer each branch of government must have the personal motive and constitutional means to resist encroachments from the other branches. Pushing the point once more Madison questions whether or not outlying the powers of each branch in a constitution will restrict the branches particularly worrying about the legislative branch drawing

The doctrine of the separation of powers is an important principle in Constitutional law. The separation of the legislature is the power to make laws; the executive is the power to administer the laws; and the judiciary is the power to interpret and enforce laws that is constructed through the Commonwealth of Australia.

James Madison in essay 48 argued checks and balances were an essential feature for separation of power to function effectively and to protect the people from tyranny. Madison asserted history has shown that unrestrained power has a tendency to encroach or expand outside of its original limitations. He insisted separating power by creating paper barriers was not enough to stop encroachments, because paper boundaries would be ignored. Madison maintained there must be a blending of powers bestowed to each branch. The branches each needed a constitutional defense against the other branches to prevent unlawful encroachments of power (FP pg 256). He declared representative republic’s

America's republican form of representative government was premised upon the idea of three co-equal branches of government: Executive, Legislative, and Judicial. The three branches, in theory, operate independent of one another and serve as check upon one another. It is this structure of this government, the founders believed, that would retard any establishment of monarchial government that the American Revolution was fought upon. However the civil war, and more specifically the Reconstruction period following it tested these principles to the core. While it may be accurate to characterize governmental struggles that defined Reconstruction as ones that were inter-branch, a more detailed and nuanced survey reveals it was borne more so out

Australia adopted its democratic system from both the Westminster and United States pre-established versions. The structure of separation of powers intends to delegate the power of the state to three branches in order to minimise the abuse of this power and ensure justice through its protection. The powers pertaining to each branch are mutually exclusive to each arm of government . The legislative branch, responsible for the drafting and establishing of laws, the executive, aimed at putting the laws into force and implementing them and the judiciary designed to interpret the laws, are evidence of the exclusivity of each branches function within the Australian government. The legislative

The creation of a supreme law constitution enforced by the judiciary would enhance the judiciary’s present role and powers and its ability to act as a check on the other branches of government. This can be seen through the idea of a supreme law constitution, compared with New Zealand’s current constitution, the present nature and extent of the New Zealand judiciary’s role and power to check the other branches; and the role and powers that the judiciary would have under a supreme law constitution, and how this would change its ability to check the other branches of government.