Toward a 'Due Foundation' for the Separation of Powers: The Federalist Papers as Political Narrative
76 Pages Posted: 2 Aug 2012
Date Written: February 1, 1996
During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the separation of powers anymore. Indeed, the Supreme Court has even managed to convince itself that these "cancelling quotations" best describe historical understandings.
Exhausted by this discourse of cancellation, we cling to reminders of the importance of the separation of power. On a regular basis, we invoke Madison's words from The Federalist that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,...may justly be pronounced the very definition of tyranny." Repeated so often, however, the words have almost lost their meaning. If we step back and repeat them, we find Madison's statement oddly exaggerated. We live in a world in which the very "tyranny" Madison decries has become banal: daily, the departments each perform legislative, executive, and judicial functions without inspiring the slightest public outcry against "tyranny."
This article argues that these fragmentary and contradictory understandings depend upon a partial, but serious, misunderstanding of the very idea of separated powers. Every time we use the term "separation of powers," we invoke a common, yet tacit, narrative of power--a narrative constructed upon the idea of legal authority: we imagine the executive, judicial, and legislative powers divided and neatly arranged among the departments. In this article, the author explores the implications of a different narrative of power, one based on the idea that power is as much constituted by the political relationships the Constitution creates as by the legal authority it bestows. She argues that the separation of political power is as, if not more, vital to the continued separation of our governmental institutions as the separation of any particular function or the allocation of any particular legal authority.
Keywords: separation of power, Supreme Court, Congress, federalist, legal authority, legislative, executive and judiciary power, politics
JEL Classification: K00, K30, K39
Suggested Citation: Suggested Citation