This year marks the 60th anniversary of Law Day, which was first established by President Dwight D. Eisenhower in 1958 as “a day of national dedication to the principles of government under law.” This year's theme as proposed by the American Bar Association is “Separation of Powers.”

Too often, we take our form of government for granted, not fully appreciating its unique and exceptional qualities. The framers of our Constitution, having revolted against tyranny, bequeathed to the nation, and to us as its citizens, a form of government with checks and balances intended to assure that we would never, as a nation, be subject to the abuses we experienced as a colony under a monarchy. The checks and balances are reflected in the separation of powers among the legislative branch (Congress), the executive (the president) and the judicial (the courts). They are enshrined front and center in the Constitution: Article I provides that all legislative powers granted in the Constitution are vested in a Congress, consisting of a Senate and House of Representatives, Article II vests the executive power of the United States in the president, and Article III vests the judicial power of the United States in one Supreme Court and other “inferior courts.” To assure the independence of the courts, the Constitution provides that federal judges hold office “during good behavior,” and that their compensation may not be diminished during their continuance in office.

What the Constitution does not describe is how important the separation of powers has been to our survival as a nation for over two centuries. In the Federalist Papers, James Madison wrote that “Ambition must be made to counteract ambition.” Madison wrote that “each department should have a will of its own: and consequently, should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” Madison believed that the separation of powers and checks and balances preserve political liberty and provide a framework for freedom. He wrote that “The different governments will control each other, at the same time that each will be controlled by itself.” In the early days of our republic, there was an active dialogue regarding the proper role of the respective branches of government. Efforts to enhance the authority of the president were met with anguish that any expansion of the president's role would inexorably lead to the very despotism against which we nobly fought. All was not easy, and the three branches of government engaged in a tug-of-war that continues to this day. For example, Chief Justice John Marshall said of Thomas Jefferson, “His great power is over the mass of the people and this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, and he is unfriendly to the source from which it flows. He looks, of course, with an ill will at an independent judiciary.” Marshall also wrote that “The attack upon the judiciary is in fact an attack upon the union.” Countering this view, Jefferson wrote that “The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot and unalarming advance, [is] gaining ground step by step … Let the eye of vigilance never be closed.” Also too, the role of the Congress was brought into the fray … both as to its powers to legislate matters that appeared to intrude upon or overlap the authority of the president or the courts, as well as its powers to regulate matters having significance at the state or local levels.

We should appreciate that the separation of powers enshrined in our Constitution was modeled on the constitutions and declarations of the states, where the separation of powers was equally observed. Mirroring our U.S. Constitution, 40 state constitutions now specify that government is to be divided into three branches: legislative, executive and judicial. The separation of powers at the state level, with an independent executive, legislature and judiciary, is also one of the fundamental tenets of our democracy.

What often gets lost in translation is how dynamic the competition among the branches of government has been, and how much stronger we are as a country because of that ongoing debate. It has been said that the Constitution is not just a historic document, but a living participant in who we are as a nation. Out of the continuing effort to assure the separation of powers, we have built a system of government that functions remarkably well. Although the powers ascribed to each of the three branches may sometimes appear to swing like a pendulum, we have continuously reconsidered and recentered our understanding of the authority and limitation of each of those branches.

On this Law Day, when many are concerned that we have become too politicized as a nation, let's take time to reflect on the great gift of the separation of powers handed down by the framers of the Constitution, and to appreciate that the rule of law reflected in that separation may well be the glue that has held us together for over two centuries. We should therefore dedicate ourselves to preserving the genius of that balance, and to protect not just the legacy of the separation of powers, but also the promise.

Linda Leali is the founding shareholder of Linda Leali P.A. She concentrates her practice on bankruptcy, creditors rights and receivership. Contact her at [email protected].