The founding fathers of this country dealt first hand with tyranny and oppressive government and wanted to make sure that the newly independent United States would not fall into the same category. The framers knew that power can corrupt, and they didn’t set up a system that would make all men saints, but would at least protect one man or group of people from gaining too much power. This is what we know as separation of powers and the three branches of government: the Legislative, Executive, and Judiciary. The 200+ years that this country has existed attests to how well this separation has worked. History has shown many struggles that branches have when putting other branches in check.

Wartime presents a situation where separation of powers is carefully scrutinized. This is when debates heat up and questions on authority are at the forefront. Congress has the power to “declare war, raise and support armies, allocate funds, and make all laws necessary and proper to carry out its functions. The president is the commander in chief of the military. “There is a friction that will always exist and should exist between the Congress and the President when it comes to military actions.” (Finkle, 2005) The Supreme Court plays a major role in this time deciding who has the authority to certain decisions when this friction is present. Consequently, this will cause enmity between either congress or the executive branch with the Supreme Court depending on who their ruling favors.

One example in the congress vs. President in wartime feud that shows how the Court intervenes with its power is The Prize Cases. After the attack on Fort Sumter, President Lincoln proclaimed a blockade of southern ports without a declaration of war from Congress. The union navy seized ships bringing goods to the confederacy. The District court condemned the vessels and the owners appealed. In a close five to four vote decision, the President won the decision. The opinion of the court stated: “If war be made by invasion of a foreign nation, the president is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral…” (J. Grier, The Prize Cases, p.461). The court goes on to say “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change that fact.”(J. Grier, p.461) The court made a distinction between being in a state of war and actually declaring it. The question was whether or not the President had the authority to make a wartime decision even though Congress did not “declare” war. The Supreme Court answered by saying that he did because the actions of the enemy put the country into a state of war warranting a response, even though Congress had not “officially” named it yet. Justice Nelson makes a good dissenting point in admitting that there existed war, but it was made legal without a declaration of Congress, and therefore their could be no legal action taken. He claimed: “…in one sense, no doubt this is war,…but it is a statement simply of its existence in a material sense, and has no relevancy or weight when the question is what constitutes war in a legal sense…For it must be war in this sense to attach to it all the consequences that belong to belligerent rights…” (J. Nelson, p.463)

In an article by the Boston Globe entitled “war counsel,” John Yoo, a former White House counsel, said “If the framers meant ''make war," but wrote ''declare war," they would be ''very clumsy draftsmen indeed." (Yoo, 2005) This statement supports the president in his/her war making decisions and ties in to what the Supreme Court concluded in the Prize Cases. Yoo goes on to say: “As Parliament did with the king, Congress today still controls the military through its budget…” (Yoo, 2005) He feels that the check Congress has on the President’s power to act in wartime decisions is their financial powers. The President can order military action being commander in chief, but if Congress doesn’t fund the excursions, the President and the military won’t get very far.

Wartime always analyzes and exhibits the fundamentals of separation of powers. Many times decisions are political and whichever party has the majority in a certain branch will dictate the power of another branch, and vise versa. Even though this may seem immoral or wrong in a sense, I believe it is exactly why the framers of the constitution set it up that way. This will actually prevent one faction from gaining too much control, even though in a certain period they may have more control than another party.

The system allows and encourages the branches to challenge and check one another. A USA Today article about the Terri Shiavo case points out that even when passions run high and test the system, the system seems to work. The article states: “That notion — dividing power equally among three branches of government to prevent tyranny — is a staple of civics classes. But, as the nation's founders anticipated, it is a concept that sometimes seems beyond the grasp of the political branches.” (USA Today, 2005) Separating powers will prevent tyranny. This case does show how laws will put restrictions on politicians who want to forward their beliefs. However, it can also show where the system may need to be adjusted to allow for moral decisions or situations where restriction of power may endanger the welfare of persons. As Justice Marshall said in Marbury v. Madison: “Those who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only law.” (Bold added.) (J. Marshall, Marbury v Madison, p.317) Amendment V says: “No person…be deprived of life…without due process of law.” (US Constitution) The opening paragraph on the constitution says: “…in order to…promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…” (US Constitution) Some people might argue that there was due process in the Shiavo case and it was warranted that her life be taken. The question is whether the process promotes the general welfare and secures it for our posterity. This may be a moral question, but it doesn’t mean that it can’t apply to the constitution, especially one that states in its introduction to “establish justice” and “promote the general welfare.” The framers proposed separation of powers and drafted a constitution also so that majority rule wouldn’t be the “voice of God” and oppress the minority.

“Ambition must be made to counteract ambition,” (Madison, p.456) said James Madison in Federalist number 51. This is a motto for separation of powers. He went on to say: “It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature?...You must first enable the government to control the governed; and in the next place oblige it to control itself.” (Madison) Madison reflects the notion that government is a necessary evil (which his good friend Thomas Jefferson used to call it). Government is there to protect people from themselves, yet the government too must be protected from itself. Separating powers was the answer for this. Wherever there is a chance of great power, it must be split, which Madison explains when proposing to divide the legislative branch into subdivisions, since the legislative branch “necessarily predominates” in a republican government. The history of friction between branches and constant checks on power has attested to the fact that the framers had put in place a plan that has proven to be successful.


Finkle, Arthur, Module 4 Introduction, 2005.

Madison, James, Federalist No. 51, 1788.

Marbury v. Madison, 5 U.S. 137 (1803).

Murphy,W., Fleming, J., Barber, S., Macedo, S. (2003). American Constitutional Interpretation (3rd Edition). New York: Foundation Press

The Boston Globe, 2005,

The Prize Cases, 67 U.S. (2 Black) 635 (1863).

USA Today, 2005,