Separation of Powers--Does it Still Work?

By Robert A. Goldwin; Art Kaufman | Go to book overview

ring to President Ronald Reagan's military exercises in and around Honduras in 1983, Richard Halloran reported American military officers' private statements that the exercises "would underline the world-wide commitments that overextend the armed forces instead of demonstrating American military power to potential adversaries." In 1973, when the War Powers Act was passed, the global American military involvement was manifest in "323 sizable installations outside the continental United States. . . . In 1983, the total is 359, not including foreign military bases to which Americans have access but do not control." The annual financial costs of American military commitments in Europe, Asia, and the Persian Gulf region were estimated at $212 billion. 73

Something there is that does not love a debate. Our system is not structured to fix responsibility on a government to govern and on an opposition to debate the government by offering alternatives. Congress can impose specific limits on the executive, such as tying approval of a Soviet-American trade agreement to a Soviet concession to liberalize the migration of its citizens, barring arms sales to Turkey pending a settlement on Cyprus, denying most-favored-nation status to members of OPEC in retaliation for the 1973 oil embargo, or forbidding clandestine aid to antigovernment forces in Angola. When it comes to sharing actively in the formulation and administration of a complex foreign policy, however, the War Powers Act may simply help the president in sending a resounding message to foreigners that the country is behind him.

The debacle in Iran illuminates the kind of issue that the American separation of powers simply does not acknowledge. The issue involves the ability to nourish, defend, and improve "fragile client states," as Stanley Hoffmann calls them. We have unquestioningly accepted the responsibilities of John Foster Dulles's extravagant commitments in the Persian Gulf, in much of Asia and the South Pacific, and in Central America. "In all such cases . . . the dilemma is the same: responsibility without actual control, or control at a prohibitive cost and with inconclusive or horrifying results." 74


Conclusion

In his historical analysis of constitutionalism, Charles H. McIlwain dwelt on the government and the rights of citizens established in law, using the terms gubernaculum and jurisdictio to designate them because the theory of constitutionalism and an adumbration of its practice were first achieved in Rome. 75 The history of constitutionalism was manifest in the continuous struggle between gubernaculum and jurisdictio, that is, between governmental order and private rights. "Con-

-113-

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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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