Separation of Powers--Does it Still Work?

By Robert A. Goldwin; Art Kaufman | Go to book overview
cause of the concern generated by this proposal, any idea of a national constitutional convention on the separation of powers is probably a nonstarter.A more practicable first step would be the appointment of a bipartisan presidential commission to analyze the issues, compare how other constitutions work, hold public hearings, and make a full report. The commission could include ranking members of the House and Senate, or Congress could establish a parallel joint commission of its own.The point of this article is not to persuade the reader of the virtue of any particular amendment. I am far from persuaded myself. But I am convinced of these propositions:
We need to do better than we have in forming a government for this country, and the need is becoming more acute.
The structure of our Constitution prevents us from doing significantly better.
It is time to start thinking and debating about whether and how to correct this structural fault.

Notes
1.
Carl McGowan, "Congress, Court, and Control of Delegated Power," Columbia Law Review, vol. 77, no. 8 ( 1977), pp. 1119-20.
2.
Woodrow Wilson, Congressional Government: A Study in American Politics ( Boston and New York: Houghton Mifflin, 1913), p. 284.
3.
Adams to Jefferson, in The Adams-Jefferson Letters, ed. Lester J. Cappon (Chapel Hill: University of North Carolina Press, 1959), vol. 2, p. 134.
4.
Quoted from Carl P. Leubsdorf, "Contemporary Problems Leave U.S. Political System Straining to Cope," reprinted in the Congressional Record, October 31, 1979, pp. S15593-94.
5.
The mention of this example may strike some readers as sharply impairing the general thesis of this article in favor of disciplined party voting in the Congress. But one can readily envisage a category of issues--analogous to mutual defense treaties--where an administration would not be entitled to apply party discipline. (In Britain, for example, votes on such issues as capital punishment have traditionally not been subject to the party whip.) Any measure amending the Constitution or affecting the separation of powers (as the 1937 Court plan did) should probably be exempted, as well as any issue of religious conscience, such as legislation bearing on abortion.
6.
Similarly, the belated consensus on energy self-sufficiency did not restrain the Congress from overriding, by one of the largest margins in history, the president's unpopular but necessary oil import fee order.
7.
Bob Eckhardt and Charles L. Black Jr., The Tides of Power: Conversations on the American Constitution ( New Haven, Conn.: Yale University Press, 1976).

-17-

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Separation of Powers--Does it Still Work?
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • The Editors and the Authors vii
  • Preface ix
  • 1 - To Form a Government 1
  • Notes 17
  • 2 - Political Parties and the Separation of Powers 18
  • Notes 36
  • 3 - The Renewal of American Constitutionalism 38
  • Conclusion 60
  • Notes 62
  • 4 - The Separation of Powers and Modern Forms of Democratic Government 65
  • Conclusions 83
  • Notes 85
  • 5 - The Separation of Powers Needs Major Revision 90
  • Conclusion 113
  • 6 - The Separation of Powers and Foreign Affairs 118
  • Notes 134
  • 7 - A 1787 Perspective on Separation of Powers 138
  • 8 - In Defense of Separation of Powers 168
  • Notes 191
  • A Note on the Book 195
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