How the Separation of Powers Doctrine Shaped the Executive
Louis J. Sirico Jr.
Villanova University School of Law
May 1, 2008
Villanova Law/Public Policy Research Paper No. 2008-24
University of Toledo Law Review, Vol. 40, 2009
This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates.
At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for second term, removing the Executive, devising the Executive veto, requiring legislative advice and consent for executive appointments, authorizing the Executive to grant reprieves and pardons, and making the Vice President the President of the Senate.
The Article demonstrates that much of the discussion centered on allocating power between the Legislative and Executive branches and thus really amounted to a struggle over defining the nascent office of the Executive. It thus offers the historical background for today's debates over separation of powers. For the Founders, separation of powers served not as a rigid rule, but as a functional guide, designed to help construct a working constitution with a workable executive branch.
Number of Pages in PDF File: 41
Keywords: Constitutional Law, Legal History, Public Law and Legal Theory
Date posted: May 31, 2008 ; Last revised: April 29, 2013