A (Modest) Separation of Powers Success Story
Grove, Tara Leigh, Notre Dame Law Review
The United States Constitution was, in many respects, designed to be "a machine that would go of itself." (1) The Constitution would be made "politically self-enforcing by aligning the political interests of officials ... with constitutional rights and rules." (2) The system of separated powers was a central component of this self-enforcing "machine." (3) As James Madison famously stated, "the great security ... consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments" on constitutional principles. (4)
Recent scholarship has, however, cast doubt on the effectiveness of this constitutional design. First, scholars have argued that partisan politics has eclipsed the checks and balances created by the Constitution, so that the relevant "check" now depends on the "separation of parties, not powers." (5) Second, and more broadly, scholars have doubted that the constitutional design will lead politicians to protect constitutional values under any circumstances, because "there is no robust mechanism ... that could even in principle align" the interests of elected officials with the public interest in constitutional enforcement. (6)
In this Essay (drawing upon prior work), (7) I argue that there is an important context in which the constitutional scheme of separated powers has functioned quite well: safeguarding the Article Ill federal judiciary. Efforts to strip federal jurisdiction have repeatedly been blocked by the "checks" established by our constitutional structure. Notably, the separation of powers has worked in this context not despite the political incentives and ambitions of elected officials, but because of those incentives and ambitions. Political actors have repeatedly found it in their interest to protect the authority of the independent federal judiciary.
This separation of powers "success story" may have broader implications. To the extent that the judiciary serves as a guardian of individual rights and other constitutional values, the structural safeguards for the federal judiciary may indirectly protect those constitutional concerns. Thus, by ensuring the authority of the Article III courts, politicians may also--however inadvertently--safeguard other constitutional principles. In sum, the Madisonian "machine" may work reasonably well, after all.
I. CRITIQUES OF MADISON'S VISION
The system of separation of powers was designed to channel--and thereby curtail--the influence of "factions." (8) Madison expressed particular concern about majority factions, which might gain substantial political power in government and use that power to oppress minorities. (9) But he argued that such an oppressive faction was unlikely to gain power in the federal government. (10) The government would be divided into three departments (the executive, legislative, and judicial), and the legislature would be further divided into the House and Senate. Much of Madison's discussion focused on the political institutions--i.e., the House, Senate, and Presidency. (11) Madison reasoned that, even if a dangerous faction captured one of these political institutions, the other institutions would use their constitutional authority to prevent encroachments on constitutional principles. (12) Thus, he stated:
[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.... Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. (13)
Accordingly, Madison did not trust that political actors would protect constitutional principles for their own sake. "If angels were to govern men, neither external nor internal controls on government would be necessary. …