Constitutional Logic of Separation of Powers

• In Event: Exploring the Foundations of American Constitutional Thought

Abstract

In this paper, I examine the Constitutional Convention’s debates to delineate the constitutional logic of our system of separation of powers. Standard analyses of separation of powers argue that separation helps prevent abuse of powers. A more sophisticated view emphasizes the positive role separation plays in encouraging the efficient use of power. Thus, institutions are structured to create incentive structures that encourage political actors in different branches to achieve specific goals: representative and wise policy in the House and Senate, energy and defense in the executive, and judgment and legal stability in the courts. My paper builds on this view and links the argument for efficient government to the goal of political legitimacy. I show that the framers intentionally designed institutions to carry out tasks efficiently; by doing so, they created organs of government capable of demonstrating to the people the workability of the government and buttressing its legitimacy. Separation of powers, as a result, goes far beyond a mere negative doctrine of checks on tyranny. It actually strengthens and maintains government, first through the creation of institutions capable of wielding power well, and second by helping the government to prove to the people its legitimacy through the efficient exercise of power.

Author

• Kevin J. Burns, Benedictine College