Separation of Powers--Does it Still Work?

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

7
A 1787 Perspective on Separation of Powers

Ann Stuart Anderson

Everyone knows how seldom men think exactly alike on ordinary subjects; and a government constructed on the principle of assent by all its parts, would be inadequate to the most simple operations. The notion of a complication of counterchecks has been carried to an extent in theory, of which the framers of the constitution never dreamt. 1

The fundamental problem, in trying to make the government of the United States work effectively, is not to preserve the separation of powers but to overcome it. For anything of consequence to be accomplished, the executive and legislative branches must be brought from confrontation into a reasonable degree of harmony. . . . Insofar as this device [legislative veto] of accommodation is now rendered unavailable, the two branches are condemned that much more often to the confrontation, stalemate and deadlock that so frequently leave the government of the United States impotent to cope with complex problems. 2


Preliminaries

Separation of powers has come in for more than its share of criticism in recent years. It is variously accused of producing deadlock or stalemate (consult the second quotation above), of dividing power from responsibility, of preventing leadership, and of simply being an out-of-date, eighteenth-century device utterly unsuited to the needs of modern government. My view is that many of these criticisms rest on a misunderstanding of separation of powers as it is embodied in the U.S. Constitution.

The device is mistakenly thought of as an arrangement of three branches of government of equal power, locked in perpetual tension

-138-

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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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