The Separation of Legislative and Executive Powers
Ronald J. Krotoszynski Jr.
University of Alabama - School of Law
Handbook of Research on Comparative Constitutional Law (Elgar Publishing 2011) (Professors Thomas Ginsburg & Rosalind Dixon eds.)
U of Alabama Public Law Research Paper No. 2159326
The Constitution of 1787 establishes a strict system of separated and divided powers. Congress is divided into two, separately elected chambers, and members of the legislative branch may not hold offices in either the executive or judicial branches of the federal government. Despite the prominence of the U.S. presidential model, it has not proven as influential in the wider world as have other U.S. innovations in constitutional design (for example, entrenched human rights safeguarded through independent courts vested with the power of judicial review). In fact, most liberal democracies, including the many new governments established in the aftermath of World War II and after the fall of the Soviet Union in the late 1980s and early 1990s, have rejected the presidential model in favor a parliamentary system that features a balance, rather than a separation, of powers between the three branches of government. In particular, parliamentary systems do not observe any separation of legislative and executive power; the same persons hold and exercise both legislative and executive powers. In part, this choice reflects the lessons of history: most presidential systems have failed when divided government gave rise to a constitutional crisis. Thus, although a matter of pressing concern and central importance to the Framers of the U.S. Constitution, separating and dividing legislative and executive power tends to lack salience in most modern constitutional democracies. This essay considers some of the root causes of this U.S. fixation with separating and dividing legislative and executive power, and posits a pervasive distrust of government, its institutions, and its incumbent officers as a primary reason for the U.S. embrace of presidentialism (despite its obvious and significant downside with respect to the efficiency of government). In the United States, we embrace inefficiency as the guardian of liberty. From a global perspective, however, efficient government is not necessarily the enemy of liberty–and inefficiency constitutes, not a virtue, but a vice in constitutional design.
Number of Pages in PDF File: 21
Keywords: constitutional law, separation of powers, parliamentary systems, presidential systems, France, Germany, United States, Argentina, Hondouras, Canada, Congress, distrust, democratic deliberation, democracy, constitutionalism, government structure, responsible government, cabinet, comparative law
Date posted: October 11, 2012