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.
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.
Lloyd N. Cutler, "To Form a Government," Foreign Affairs (Fall 1980), p. 127, reprinted as chapter I in this volume.
Charles M. Hardin, Presidential Power and Accountability ( Chicago: University of Chicago Press, 1974), p. 2.
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.
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
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Separation of Powers--Does it Still Work?.
Contributors: Robert A. Goldwin - Editor, Art Kaufman - Editor.
Publisher: American Enterprise Institute.
Place of publication: Washington, DC.
Publication year: 1986.
Page number: 191.
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