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Checks and Balances in Foreign Relations

Published online by Cambridge University Press:  27 February 2017

Elliot L. Richardson
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Extract

One of the most frequently overstated concepts in American constitutional theory is the “separation” of powers. The Framers of the Constitution began with the proposition that concentration of power was to be avoided. They understood, on the other hand, that if governmental powers and responsibilities were actually set apart, each branch would exercise its powers in isolation from the other coordinate branches, to the detriment of cooperation and accommodation among them. Governance would be at best inefficient and at worst impossible.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 736 - 739
Copyright
Copyright © American Society of International Law 1989

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References

1 O’Donoghue v. United States, 289 U.S. 516, 530 (1933) (citation omitted).

2 Madison observed that “[t]he oracle who is always consulted and cited on this subject is the celebrated Montesquieu.” The Federalist No. 47, at 244 (J. Madison) (Bantam Classic ed. 1982). Of the 85 Federalist Papers, which first appeared on Oct. 27, 1787, 26 discussed defense or foreign policy. Alexander Hamilton wrote 51 papers; James Madison, 29; and John Jay, 5. For a fascinating and well-written account of the events leading to their publication, see R. Morris, Witnesses at the Creation: Hamilton, Madison, Jay, and the Constitution (1985).

The Federalist Papers were written to persuade the people of New York State to ratify the Constitution. One well-placed observer has noted that

[t]heir practical wisdom stands pre-eminent amid the stream of controversial writing at the time. Their authors were concerned, not with abstract arguments about political theory, but with the real dangers threatening America, the evident weakness of the existing Confederation, and the debatable advantages of the various provisions of the new Constitution.

3 W. Churchill, A History of the English-Speaking Peoples: The Age of Revolution 258 (1957).

3 ‘Montesquieu’s view that the maintenance of independence as between the legislative, the executive and the judicial branches was a security for the people” had the “full approval” of the Framers. Myers v. United States, 272 U.S. 52, 116 (1926). Indeed, agreement on the fundamental importance of the separation was “virtually unanimous.” Erler, The Constitution and the Separation of Powers, in The Framing and Ratification of the Constitution 151, 151 (L. Levy & D. Mahoney eds. 1987).

4 Quoted in Constitutional Law: Cases and Other Problems 649 (P. Freund, A. Sutherland, M. Howe & E. Brown 4th ed. 1977).

5 The Federalist No. 47, supra note 2, at 245.

6 Id. at 246 (quoting with approval the New Hampshire Constitution).

The Supreme Court observed in Buckley v. Valeo that there is “common ground in the recognition of the intent of the Framers that the powers of the three great branches of the National Government be largely separated from one another.” 424 U.S. 1, 120 (1976).

7 Bowsher v. Synar, 478 U.S. 714, 722 (1986) (striking down the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985).

8 The Federalist, supra note 2, No. 48, at 250 (J. Madison).

9 A. Schlesinger, Jr., The Imperial Presidency 2 (1973).

10 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

11 P. Holt, The War Powers Resolution: The Role of Congress in U.S. Armed Intervention 1 (1978).

12 For a fuller discussion, see The War Powers Resolution: Hearings Before the Subcomm. on Arms Control, International Security and Science of the House Comm. on Foreign Affairs, 100th Cong., 2d Sess. 201–06 and 213–14 (1988) (statement of Elliot L. Richardson).