This is a longer-than-average post about why we think that the Constitution establishes three equal branches. As I’ve explained in some earlier posts, the text does not support that proposition, and at the Founding it’s hard to find anyone who said that the three branches were equal. The Fourteenth Amendment also refutes that claim by reinforcing Congress’s position as the superior branch (more on that in a separate post).
What’s really surprising about my research thus far is the paucity of authorities that say that we have three equal branches. Here’s what I’ve found so far (though, of course, the work goes on, the cause still lives, and the dream shall never die).
1. Andrew Jackson appears to have invented the idea that we have three coequal branches. (Take that–those who want him off the $20 bill.) He made this argument in his Protest against the Senate Censure Resolution that attacked his withdrawal of deposits from the National Bank as unconstitutional. Nobody, though, appears to have relied on his assertion afterwards, and no President made a similar claim until the 1950s.
2. In 1864, the Supreme Court stated in dicta: “It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government.” Nobody cited this statement afterwards either (as far as I can tell).
Maybe that was because there were some major problems with the Court’s claim (in an opinion by Chief Justice Taney). First, the Court was at the low ebb of its authority at that point (during the Civil War), and so its statement about coequality seems self-serving. Second, the Fourteenth Amendment undercut the assertion that the Court was equal in title to Congress, as I’ll explain tomorrow.
3. In Marshall Field & Co. v. Clark (1892), Justice Harlan wrote for the Court in a case where the issue was whether an Act of Congress was, in fact, an Act of Congress. (In other words, did the same bill pass both houses of Congress?) Harlan said: “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”
This line was cited in two other opinions by Harlan, and my tentative conclusion is that he just cared about a lot about this idea, as he also wrote in 1911 that: “The illustrious men who laid the foundations of our institutions deemed no part of the national Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of government among three separate, equal, and co-ordinate departments,—legislative, executive, and judicial.”
Anyway, more work to be done.