Academic journal article Texas Review of Law & Politics

Tex Lezar Memorial Lecture*

Academic journal article Texas Review of Law & Politics

Tex Lezar Memorial Lecture*

Article excerpt

It is surely no secret to anyone in this room that Tex Lezar had an abiding love for his country, its political structure, politics, and the law. Indeed, he dedicated a good part of his life to these passions. And the principle of government that held the most fascination for Tex was the separation of governmental powers.

The separation of powers was a very big deal to Tex. I first met Tex when he came to Washington to work with Ken Starr on the staff of President Reagan's first Attorney General, William French Smith. Tex was cranking out speeches for Attorney General Smith about the separation of powers before he had even unpacked his socks.

The best example I can give you to illustrate the fact that the separation of powers was almost a religion with Tex is the story I told at his memorial service regarding the decision by Tex and Merrie to ask me to be godfather to Maverick. I asked Tex why he had chosen me. I was certain that he knew people who had spent more Sundays in church. Wouldn't he and Merrie prefer someone who would be more qualified to deal with Maverick's spiritual upbringing? "No," Tex replied. If anything happened to him, he explained, he wanted Maverick to have someone to teach her about the separation of powers.

Of course, if that was his criteria, how many choices did he have? There are a lot more people who study the Old and New Testaments than Madison and Montesquieu. I must have seemed just the right person for the job. My position at the Justice Department when we served there together was all about the separation of powers. And the number of people other than Supreme Court Justices you could talk with about that subject in those days could all ride in the same elevator. Separation of powers was such inside baseball that when I left the Department in 1984 my friends had a great laugh about what a grand and glorious law practice I could create specializing in the separation of powers. Fortunately, it turned out more lucrative than they thought. At least I didn't have a lot of competition.

It is altogether fitting, therefore, that the first Tex Lezar Memorial Lecture be about the separation of powers. And, since this is the first such lecture, let me begin with some basics before turning to one recent manifestation of what I perceive to be a threat to the proper alignment of power in our central government.

Some of you might well be asking precisely what is the separation of powers, and why it is it so important. Those are good questions, questions that Tex would have wanted you to ask and his first lecturer to address. Like Senator Kerry's Senate voting record, however, it is not that easy to explain.

Each of us knows, of course, that our Constitution divides governmental authority into three categories: legislative, executive and judicial. And that it lodges those powers in the three principal branches of our government: Congress, the President, and the Judiciary. Each component may thus act as a check on the other two, and the powers of government can never, in theory at least, be united in the same hands. This arrangement was quite carefully developed because the Founders of our government believed that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Therefore, these three discrete aspects of governmental power were separated and put into three branches under the leadership of different officials. As a consequence, the only way that government can tell you what to do is if both houses of Congress pass a law, the President decides to enforce it against you, and the courts decide that the law can fairly be applied to your conduct. This vindicates a principal, but not the only, goal of the separation of powers: the prevention of tyranny and the preservation of liberty.

Given how fundamental this concept is to our system of government, it may come as a surprise to some of you that the phrase "separation of powers" appears nowhere in the Constitution. …

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