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The Separation of Powers in American Politics: Why We Fail to Accentuate the Positive*

Published online by Cambridge University Press:  28 March 2014

Jhon Zvesper
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Extract

ONE OF THE FIRST THINGS THAT STUDENTS OF POLITICS IN THE USA learn is that the central organizing principle of the Constitution and of the political system is the separation of powers. Yet most students begin with – and few are encouraged to go beyond – a very one-sided view of that principle. For the most part, they are taught about the protective, controlling purposes rather than about the constructive, empowering purposes of the practice of separating governmental powers. They are always taught to appreciate power separation as a means of avoiding certain evils, but they are rarely taught to appreciate it as a means of attaining certain goods.

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Articles
Information
Government and Opposition , Volume 34 , Issue 1 , January 1999 , pp. 3 - 23
Copyright
Copyright © Government and Opposition Ltd 1999

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References

1 The arrival of this new system was most prominently announced by Anthony King (ed.), The New American Political System, Washington, DC, American Enterprise Institute for Public Policy Research, 1978 Google Scholar.

2 Diamond, Martin, Winston Mills Fisk and Herbert Garfinkel, The Democratic Republic: An Introduction to American National Government, 2nd ed., Chicago, Rand, McNally & Company, 1970, pp. 103–11;Google Scholar Epstein, David F., The Political Theory of ‘The Federalist’, Chicago, The University of Chicago Press, 1984 Google Scholar, chs. 5 and 7; Thomas G. West, ‘The Rule of Law in The Federalist,’ in Kesler, Charles R. (ed.), Saving the Revolution: ‘The Federalist Papers’ and the American Founding, New York, The Free Press, and London, Collier Macmillan, 1987, pp. 159–62;Google Scholar Charles R. Kesler, ‘Separation of Powers and the Administrative State,’ in Jones, Gordon S. and Marini, John A. (eds), The Imperial Congress: Crisis in the Separation of Powers, New York, Pharos Books, 1988, pp. 20–40;Google Scholar Macedo, Stephen, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism, Oxford, Clarendon Press, 1990, pp. 152–61Google Scholar; Mansfield, Harvey C., ‘Separation of Powers in the American Constitution’, in America’s Constitutional Soul, Baltimore, Johns Hopkins University Press, 1991, pp. 115–27;Google Scholar Bessette, Joseph, The Mild Voice of Reason: Deliberative Democracy and American National Government, Chicago, University of Chicago Press, 1994, ch. 2;Google Scholar and Korn, Jessica, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto, Princeton, Princeton University Press, 1996, ch. 2.Google Scholar

3 Most famously, Justice Louis Brandeis: ‘the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to predude the exercise of arbitrary power. The purpose was not to avoid friction.’Myers v United States 272 US 52, 293 (1926). Chief Justice Earl Warren also asserted that the separation of powers was ‘obviously not instituted with the idea that it would promote governmental efficiency’United States v Brown 381 US 437, 441 (1965); see also Kennedy’s, Justice concurring opinion in Clinton v City of New York 97–1374 (1998)Google Scholar. In contrast, consider Justice Robert Jackson’s somewhat more balanced account: ‘While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependency, autonomy but reciprocity.’Youngstown Sheet and Tube Co. v Sawyer 343 US 579, 635 (1952).

4 Grant, Alan, The American Political Process, 6th ed., Aldershot, Hampshire, and Brookfield, Vermont, Ashgate Publishing Company, 1997, p. 28.Google Scholar

5 Wilson, James Q., ‘Does the Separation of Powers Still Work? ’, The Public Interest, 86 (Winter 1987), pp. 36–52.Google Scholar

6 Janda, Kenneth, Berry, Jeffrey M., Goldman, Jerry and Huff, Earl, The Challenge of Democracy: Government in America, briefed., Boston, Houghton Mifflin Company, 1990, p. 49.Google Scholar

7 Bardes, Barbara A., Mack, C. Shelley, II and Schmidt, Steffen W., American Government and Politics Today: The Essentials, Minneapolis/Saint Paul, West Publishing Company, 1994, p. 41.Google Scholar

8 Vile, M. J. C., Politics in the USA, 4th ed., London, Unwin Hyman, 1987, p. 20.Google Scholar

9 Foley, Michael and Owens, John E., Congress and the Presidency: Institutional Politics in a Separated System, Manchester and New York, Manchester University Press, 1996, pp. 333–4.Google Scholar

10 Fisher, Louis, The Politics of Shared Power, 3rd ed., Washington, DC, Congressional Quarterly, Inc., 1993, p. 10.Google Scholar

11 Fisher, Louis, The Constitution Between Friends: Congress the President, and the Law, New York, St Martin’s Press, 1978, pp. 7, 9.Google Scholar

12 Ibid., p. 8.

13 Ibid. See also Fisher, Louis, President and Congress: Power and Policy, New York, Free Press, 1972, pp. 3–4.Google Scholar

14 Wilson, James Q., American Government, brief version, 4th ed., Boston and New York, Houghton Mifflin Company, 1997, pp. 21, 31.Google Scholar

15 Maidment, Richard and McGrew, Anthony, The American Political Process, London, Sage Publications, 1991, p. 46;Google Scholar see also the corresponding description of ‘checks and balances’ on p. 42: ‘the Founding Fathers did not wish to create a political system which co‐operated smoothly. Instead, it was their hope that these points of interdependence would not encourage agreement but foster hostility and tension.’

16 The Federalist, No. 51.

17 The Federalist, No. 48.

18 Held, David, Models of Democracy, Cambridge, Polity Press, 1987, pp. 61–7.Google Scholar

19 Welch, Susan, Gruhl, John, Steinman, Michael and Corner, John, American Government, St Paul, West Publishing Company, 1992, pp. 32, 34 Google Scholar.

20 The Federalist, No. 51.

21 Foley and Owens, op cit., p. 338.

22 Ibid., p. 339.

23 Kesler, op. cit., pp. 27–28.

24 The Federalist, No. 57.

25 The Federalist, No. 55.

26 The Federalist, No. 37.

27 The Federalist, No. 48. The failure to appreciate the significance of the different kinds of power underlies the often‐quoted but inaccurate and misleading observation that the Constitution did not create ‘a government of “separated powers”’ or anything ‘of the sort’, but rather a government of separated institutions sharing powers’. Neustadt, Richard E., Presidential Power: The Politics of Leadership, New York, John Wiley & Sons, 1960, p. 33 Google Scholar (original emphasis). Neustadt, for whom presidents’ power rests largely on their persuasiveness, neglects the strictly executive power of presidents, which depends much more on their decisiveness and discretion than on their persuasiveness.

28 The Federalist, No. 11.

29 The Federalist, No. 10.

30 The Federalist, No. 64.

31 The Federalist, No. 10.

32 The Federalist, No. 71.

33 The Federalist, No. 72.

34 The Federalist, No. 68.

35 Ibid.

36 The Federalist, No. 78.

37 This crucial part of the American founders’ purposes for separate powers returns to but also greatly expands and republicanizes the very old argument made in favour of separating legislative and executive power on grounds of greater governmental ‘efficiency’, an argument discussed by W. B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution, Orleans, New, Tulane University, and The Hague, Martinus Nijhoff, 1965, ch. 3; see also pp. 56–8, 78–9.Google Scholar Gwyn observes: ‘This version of the separation of powers is unlike others in being only incidentally concerned with the maintenance of liberty’ (p. 32), and in not being ‘based on the notion that man is essentially so evil or susceptible to the self‐regarding emotions that he is bound to use governmental power to the detriment of the common interest unless prevented in some way from doing so’ (p. 128). For an earlier appreciation of the ‘complementary’ purposes of separating powers – specialization and efficiency on the one hand, prevention of tyranny on the other – see Sharp, Malcolm P., ‘The Classical American Doctrine of “The Separation of Powers”’, The University of Chicago Law Review, Vol. 2, 04 1935, pp. 345–436.Google Scholar

38 L. Peter Schultz, ‘The Separation of Powers and Foreign Affairs’, in Goldwin, Robert A. and Kaufman, Art (eds), The Separation of Powers: Does It Still Work? Washington, DC, American Enterprise Institute for Policy Research, 1986, pp. 118–37.Google Scholar

39 Reiman, Steven, Making Public Policy: A Hopeful View of American Government, New York, Basic Books, 1987.Google Scholar

40 Ibid.; Bessette, op. cit.; Muir, William Ker, Legislature: California’s School for Politics, Chicago, University of Chicago Press, 1982;Google Scholar Arthur Maass, Congress and the Common Good, New York, Basic Books, 1983; and L. Peter Schultz, ‘Congress and the Separation of Powers: Practice in Search of a Theory’, in Wilson, Bradford P. and Schramm, Peter W. (eds), Separation of Powers and Good Government, Lanham, Maryland, Rowman & Littlefield, 1994, pp. 185–200.Google Scholar

41 Polsby, Nelson, Policy Innovation in America, New Haven, Yale University Press, 1984;Google Scholar Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan, Cambridge, Mass., Harvard University Press, 1990; David R. Mayhew, Divided We Govern: Party Control Lawmaking and Investigations, 1946–1990, New Haven, Yale University Press, 1991; and Jones, Charles O., The Presidency in a Separated System, Washington, DC, Brookings Institution, 1994.Google Scholar

42 Robinson, Donald L., ‘The Renewal of American Constitutionalism’, in Goldwin, and Kaufman, (eds), op. cit., pp. 38–40.Google Scholar

43 For a recent example of such scrutiny, illustrating this point, see Barendt, Eric, ‘Separation of Powers and Constitutional Government ’, Public Law, 1995, pp. 599–619.Google Scholar

44 Wilson, Woodrow, Congressional Government: A Study in American Politics, Boston and New York, Houghton Mifflin Company, 1913 (first published 1885), pp. 332–3.Google Scholar

45 Ibid., p. 284. ‘The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake.’

46 Ibid., p. 282.

47 Ibid., pp. 308, 311.

48 Lloyd N. Cutler, one of the leaders of recent movements to attenuate the separation of powers, has acknowledged his debt to Wilson: ‘To Form a Government’, in Goldwin and Kaufman (eds), op. cit., p.5. Recent writings by reformers can be found in Robinson, Donald L. (ed.), Reforming American Government: The Bicentennial Papers of the Committee on the Constitutional System, Boulder, Colorado, Westview Press, 1985 Google Scholar; Sundquist, James L., Constitutional Reform and Effective Government, Washington, DC, Brookings Institution, 1992;Google Scholar Sundquist, (ed.), Beyond Gridlock? Prospects for Governance in the Clinton Years and After, Washington, DC, Brookings Institution, 1993 Google Scholar; and Sundquist, (ed.), Back to Gridlock? Governance in the Clinton Years, Washington, DC, Brookings Institution, 1996 Google Scholar.

49 Wilson, op. cit., p. 205.

50 Ibid., p. 203.

51 In 1900, in a new preface written for the fifteenth edition of Congressional Government, Wilson celebrated the ‘greatly increased power and opportunity for constructive statesmanship given to the President, by the plunge into international politics’ during and after the Spanish‐American War of 1898. Ibid., p. xi.

52 This paragraph was shaped in conversations with James Pontuso, currently a John Adams Fellow at the Institute of United States Studies.

53 Lloyd Cutler (op. cit., pp. 9–10) cites these changes as reasons for attacking the separation of powers, rather than considering that the changes themselves should be seen as the culprits!