The COURTS, the LEGISLATURE, and the EXECUTIVE: Separate and Equal?

By Doerfer, Gordon; Piersol, Lawrence L. et al. | Judicature, March/April 2004 | Go to article overview

The COURTS, the LEGISLATURE, and the EXECUTIVE: Separate and Equal?


Doerfer, Gordon, Piersol, Lawrence L., Netsch, Dawn Clark, Judicature


The judicial power of the United States of America, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The executive power shall be vested in a Resident of the United States of America. He shall hold his office during the term of four years,...

Historical Overview on the Separation of Powers

Moderator: Honorable Gordon Doerfer, Massachuetts Court of Appeals (center).

Participants: Professor Thomas O. Sargentich, American University Washington College of Law, Director, LL.M. Program on Law and Government (right).

Professor Mark C. Miller, Chair, Department of Government and Chair, Law and Society Program, Clark University (left).

Gordon Doerfer

We decided to do this program on the separation of powers last August. It came up in the context of some developing and present high-visibility issues that are of great interest in our public life in this country. And it was stimulated by a variety of concerns; some of which had to do with questions relating to the intersection between executive and judicial power in the context of the war on terrorism, and the relationship between the Congress and federal judges and state legislatures and state judges in matters of sentencing. And, of course, there have been some high -visibility topics put on the table over the last several months relating to questions about the appropriate role of the legislative and executive branches in commenting on or monitoring or controlling the activities of the judiciary.

And of course the executive and legislative branches of the government occasionally make comments about the role of judges and whether or not they are exceeding their proper role. We have some discussions about that going on in Massachusetts right now. So there is a huge range of topics that are covered, in my view, under the concept of sepa ration of powers. What we intend to do this morning is focus on the historical and theoretical foundations of the doctrine of separation of powers, how central it is to our form of government, and on the intersections-the historical intersections-between the various branches of government.

This afternoon we are going to focus on the federal side of the question. We assembled a panel that includes representatives and spokespersons from all branches of government, as well as from academia and the public. And tomorrow morning we are going to continue the discussion, but in the context of how issues arise at the state level.

We are very fortunate to have for our opening session two academics who I think are the best people to address the historical and theoretical aspects of the problem -Professors Thomas Sargentich and Mark Miller.

Foundations of separation of powers

Thomas Sargentich

My comments today are essentially about the foundations of the separation of powers. I'll proceed in four main parts. First, very briefly, I'll provide a survey of the seventeenth and eighteenth century origins of the concept. Second, I'll touch on James Madison and his contribution to the theory of separation of powers. Third, I'd like to focus on the challenge to separation of powers arising from the emergence of the modern administrative state, which created some particular challenges. And, finally, I would like to talk about some of the values underlying the reality of separate institutions that share governance of the United States today, and some of the important principles that I think are protected by our system of checks and balances.

Separation of powers was a theme that emerged in the seventeenth century in a period when in England there was a good deal of antimonarchical sentiment among reformers, and it became a theory perfectly associated with a negative view of government. …

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