Separation of Powers--Does it Still Work?

By Robert A. Goldwin; Art Kaufman | Go to book overview

policy, illegal immigration, the arms race, the deficit--which our constitutional system seems unable to solve. I traced this impasse to the fact that the system was designed in and for less demanding times and argued that a simpler, more integrated system would be both more effective and more accountable. Would the changes proposed produce sound policy? Not necessarily. That would depend on the wisdom and skill of our leaders and the health of our culture. What they would do is to remove the excessive obstacles to coherent policy and improve the chance that the electorate could empower a government and hold it accountable for its actions.

It is time to renew the American experiment in constitutional democracy. Its development has been fitful in recent years, as Congress and successive administrations have sought ways to adjust the existing structure and processes to the incessant demands of modernity and as the Supreme Court has groped for reasons for deciding which accommodations are sufficiently in accord with the framers' design and which are not. Despite these creative and dedicated efforts, the feeling has grown that we have lost our way, that our institutions no longer serve the principles that we share with the founding generation. The proposals set forth here are imperfect. They may be thought too timid or too radical as the nation comes to understand its situation and its needs. But if they are seen as arising out of the American tradition and as moving in the direction of a system of government that is both effective and kept accountable to the popular will, perhaps other minds or, even better, the collective mind of the American people will deem them worthy of criticism and improvement.


Notes
1.
Note the exchange between Roger Sherman and James Madison early in the federal convention ( June 6, 1787). Sherman would have restricted the federal government to national defense and foreign relations; Madison thought it must also protect private rights and establish justice. It is not clear exactly what Madison meant, but in Federalist No. 10 he argues that the primary object of modern legislation is the regulation of commerce. Thus the list of powers in Article I, sec. 8, probably reflects Madison's concept fairly closely. But see also his motion on August 18, 1787, to give Congress power to "establish an University." The motion was defeated on September 14, partly on Gouverneur Morris's argument that it was not necessary, being encompassed in the power of Congress over the seat of government.
2.
Indeed, many ( Hamilton, Gouverneur Morris, John Rutledge) were impatient to spur the nation into greater involvement with the cosmopolitan world. Others--Elbridge Gerry, Edmund Randolph, and George Mason, as well as Thomas Jefferson, watching from Paris--were more apprehensive

-62-

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Separation of Powers--Does it Still Work?
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • The Editors and the Authors vii
  • Preface ix
  • 1 - To Form a Government 1
  • Notes 17
  • 2 - Political Parties and the Separation of Powers 18
  • Notes 36
  • 3 - The Renewal of American Constitutionalism 38
  • Conclusion 60
  • Notes 62
  • 4 - The Separation of Powers and Modern Forms of Democratic Government 65
  • Conclusions 83
  • Notes 85
  • 5 - The Separation of Powers Needs Major Revision 90
  • Conclusion 113
  • 6 - The Separation of Powers and Foreign Affairs 118
  • Notes 134
  • 7 - A 1787 Perspective on Separation of Powers 138
  • 8 - In Defense of Separation of Powers 168
  • Notes 191
  • A Note on the Book 195
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