Separation of Powers--Does it Still Work?

By Robert A. Goldwin; Art Kaufman | Go to book overview
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the courts, which have become policy-making institutions not only incidentally, in consequence of the performance of judicial duties, but by deliberate design. Perhaps because critics of separation of powers have traditionally favored a growth in federal responsibilities and greater equality, they have chosen for instrumental reasons to treat the courts' policy-making role with benign neglect. Meanwhile, allies of the political positions taken by the courts have adopted a pious theory of constitutionalism that elevates judicial power far beyond anything originally contemplated. This theory has served successfully to prevent the other branches from summoning the political will to check the judiciary and to assume responsibility for policy matters that ought to be under their control.

The four isms discussed here, much more than the theory of separation of powers, may help to explain many of the problems that seem (to some) to make American government unworkable. If there are changes needed, we ought to begin by realizing that the doctrine of separation of powers imposes on us the responsibility of constructing, within certain limits, the policy-making structure. Before attacking the limits, we would do well to accept our responsibility to examine carefully the elements of the system that have recently been constructed. Change there must always be, but let us approach it prudently, with a disposition to preserve and a willingness to improve.


Notes
1.
The fall of the Fourth Republic in the spring of 1958 followed a thirty- eight-day ministerial crisis in the winter during which no government could be formed. Finally a weak prime minister was appointed who could do nothing to quell the spreading insurgency in the armed forces. For an account of these events and a discussion of the influence of the American Constitution on the founders of the Fifth Republic, see William Safran, The French Polity ( New York: David McKay, 1977), pp. 50-59.
2.
Lloyd N. Cutler, "To Form a Government," Foreign Affairs (Fall 1980), p. 127, reprinted as chapter I in this volume.
3.
Ibid., p. 126.
4.
Charles M. Hardin, Presidential Power and Accountability ( Chicago: University of Chicago Press, 1974), p. 2.
5.
See, for example, Gabriel A. Almond and G. Bingham Powell Jr., Comparative Politics Today, 2d ed. ( Boston: Little, Brown, 1980). The insights of this modern approach were already developed and employed by Montesquieu in The Spirit of the Laws.
6.
Most of these regimes have parliamentary governments of one sort or another. One ( France) combines presidential and parliamentary features, and the United States possesses a pure presidential or separation of powers

-191-

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