the courts, which have become policy-making institutions not only incidentally, in consequence of the performance of judicial duties, but by deliberate design. Perhaps because critics of separation of powers have traditionally favored a growth in federal responsibilities and greater equality, they have chosen for instrumental reasons to treat the courts' policy-making role with benign neglect. Meanwhile, allies of the political positions taken by the courts have adopted a pious theory of constitutionalism that elevates judicial power far beyond anything originally contemplated. This theory has served successfully to prevent the other branches from summoning the political will to check the judiciary and to assume responsibility for policy matters that ought to be under their control.
The four isms discussed here, much more than the theory of separation of powers, may help to explain many of the problems that seem (to some) to make American government unworkable. If there are changes needed, we ought to begin by realizing that the doctrine of separation of powers imposes on us the responsibility of constructing, within certain limits, the policy-making structure. Before attacking the limits, we would do well to accept our responsibility to examine carefully the elements of the system that have recently been constructed. Change there must always be, but let us approach it prudently, with a disposition to preserve and a willingness to improve.