The Perplexing U.S. Preoccupation with Executive/Legislative Separation of Powers, the Concept's Lack of Global Salience, and the Importance of Cultural Pluralism to the Perceived Legitimacy of Government Institutions

Abstract

The U.S. Constitution and the U.S. iteration of constitutionalism have been highly influential in the rest of the world. A written constitution, federalism, judicial review, and a written bill of rights are common characteristics of many constitutions adopted since World War II. In one key respect, however, the U.S. model has not found many takers: separation of executive and legislative powers. The United States maintains a strong separation of legislative and executive powers - a state of affairs that is very unusual, at least when viewed from the perspective of most of Europe, Canada, and a good number of other democracies elsewhere (e.g., Israel, South Africa, Australia, New Zealand). The Constitution itself and the Framers clearly feared that combining executive and legislative powers would be conducive to "tyranny" and should, accordingly, not be permitted. The essay posits that the U.S. concern with separating and dividing executive and legislative power stems from a more generalized skepticism toward government and government institutions than exists in most other democracies. The essay also suggests that, notwithstanding the obvious downside of making government action more difficult by requiring the separate concurrence of the President (or a supermajority of the Congress), this arrangement provides an important structural benefit by facilitating a separate political review of legislative policies. Judicial review is an important and useful way of securing constitutional government; executive review of legislative policies, which may be more wide-ranging than judicial review, also helps to secure good governance.

Keywords: separation of powers, comparative constitutional law, politics, judicial review, constitutionalism, bill of rights