THE POLITICAL TILT OF SEPARATION OF POWERS
JAMES Madison wrote of separation of powers that "no political truth is certainly of greater intrinsic importance." Five years later he termed the doctrine "a first principle of free government," and for more than two hundred years Americans have viewed the constitutional structure of separation of powers set forth in the U.S. Constitution as one of our major contributions to constitutional development in the world.1
Yet constitutional discourse about separation of powers too often separates legal doctrine from the historical, social, and political conditions that cultivate and nurture the law and thereby ignores the interests constitutional arrangements serve. The constitutional allocation of power often is viewed mythically as a "political truth," a politically neutral process divorced from result, and the question legal scholars usually ask is whether the process is efficient, democratic, reasonable, or fair rather than what interests it might serve or policy results it might favor. While law review articles and casebooks focus on determining which legal theory--formalist or functionalist are the usual alternatives--best captures the essence of our government's structure, or on harmonizing conflicting Supreme Court decisions, a fuller understanding of separation of powers requires attention to the political, social, and economic influences and interests that underlie constitutional arrangements. This chapter examines the connection between constitutional process and constitutional outcomes--in other words, the political tilt of separation of powers.
The framers of the Constitution had several goals in constructing the separation-of-powers scheme. First, they wanted to establish a stronger,