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S, Separation of Powers.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Separation of Powers.

In American discourse separation of powers is more a name than a description. None of the three branches (legislative, executive, or judicial) of the national government are clearly separate from one another. Congress, for example, has an impeachment club to check the others; the president’s *veto power is plainly legislative in nature. No wonder James *Madison in The *Federalist, no. 47, undertook to answer the Anti-Federalist charge that “The several departments of power are [not separated but] blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” Madison’s answer was that Montesquieu—the “oracle” of separation—did not mean that “departments ought to have no partial agency in, or control over, the acts of each other.” He meant rather that “the whole power of one department [should not be] exercised by the same hands which possess the whole power of another department.” The merit of “blending,” according to Madison, was that, along with bicameralism and *federalism, it produced a safety net of “checks and balances.”

A crucial problem is that split power inevitably entails split accountability. No wonder then that so many difficulties in American government spring ultimately from its divided power system. In contrast, the parliamentary system seeks safety in clear, direct lines of electoral accountability—and less in a mechanistic clash of sundered agencies of government. Concentrating power for effective action in a prime minister, it makes that person directly amenable to parliament while the latter is directly amenable to the electorate. This scheme largely eliminates what for Americans is a persistent quandary: which of several shells hide the peas of power and responsibility? That quandary partially accounts for the sense of frustration that is so widespread in the American electorate.

Historical Background.

What was the evil that checks and balances were designed to cure? The founders presumably were haunted by monarchy and, in particular, George III. Perhaps, as some progressive historians insist, they feared the untutored masses. In this view the Constitution was foisted upon the country as an antidote against “the evils of democracy.” The prime purpose allegedly was to protect vested interests by such curbs upon the masses as checks and balances—especially judicial review—and a central government in which only the House of Representatives was to be popularly elected.

Madison suggested in The Federalist that what most moved the founders was neither monarchy nor the masses but human nature, as they understood it. In their view mankind is moved less by reason than by passion, less by benevolence than by self-interest. As Alexander *Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint” (Federalist, no. 15). Separated powers along with checks and balances are prominent among the several “interior” and “exterior” constraints described in The Federalist, nos. 10, 47, 51. It is crucial that these essays are concerned with checking both minority and majority “factions” that spring from self-interest, whereas the progressives seem to have thought majorities could do no wrong.

But if majority as well as minority factions were to be constrained, how could government be expected to function efficiently? The answer must be that the founders favored inefficient government checked and balanced against itself because it seemed safer than the greater risk of tyranny in a more efficient system. The choice was relatively easy given the simple, static society of 1787 that required, by modern standards, very little government. Surely the founders might reasonably have supposed the modest needs of their day could be met by machinery that at best would work slowly and, perhaps, only when supported by a consensus of opinion so great as to neutralize the built-in impediments. While the simple community the founders knew has long since passed away, their basic plan of government lives on.

Separation and the Party System.

The need for coordination of the separated branches helps to explain the extraconstitutional rise of our political party system that began in President George *Washington’s administration. Former members of the Constitutional Convention moved into all branches of the new government. Indeed, the convention’s Federalist values prevailed throughout the Washington administration and in the Supreme Court as well. That is why, despite checks and balances, Hamilton was able to achieve speedily his famous, if controversial, legislative program. The key to his success was a kind of embryonic one-party system that bridged and (p. 906) neutralized checks and balances. The lesson was not lost on Thomas *Jefferson. Recognizing that opposition from within was futile, he resigned from Washington’s cabinet to build and lead an opposing party. What he achieved was an informal constitutional amendment that made political parties a vital element of American government.

Strong parties promote strong government because they cultivate cooperation at the expense of friction among the separated organs. Thus in the long view the history of American government seems a history of spasms. In weak party eras when the founders’ system prevails, Congress and the president are apt to be at odds. In strong-party eras the built-in friction is ameliorated. Then there are apt to be vigorous legislative programs in response to accumulated problems. President Woodrow Wilson’s crucial reforms were the fruit of the high tide of the progressive movement, which for a brief time reinvigorated both major parties (see progressivism). Later the Great Depression gave Franklin D. *Roosevelt the leverage to build a potent new Democratic party; a massive *New Deal program followed. By the 1950s that party had lost its zest as had the Republican party much earlier. Even the bright new Kennedy administration was frustrated in Congress. Then the shock of the assassination along with huge Democratic congressional majorities—thanks to Barry Goldwater’s unsuccessful 1964 campaign—enabled President Lyndon B. Johnson to push a major reform program through Congress. Given the *Vietnam War, the period of harmony and vigorous legislative reform was brief. Then separation of powers produced another period of stagnation.

Those who like clear, logical lines of power and responsibility find all this at best discouraging. Others, perhaps more sensitive to mankind’s long, unhappy experience with government, find that among the world’s few free nations the United States does not suffer by comparison; that history portends enough congressional-presidential cooperation to meet pressing needs; that the gaps between these periods of creative harmony are in fact periods of gestation; that checks and balances have not prevented, but only delayed, innovation—thus promoting substantial consensus behind public policy. Of course, almost any determined and not insignificant minority generally can erect multiple constitutional or extraconstitutional barriers to frustrate virtually any proposal it finds seriously objectionable.

Judicial Independence in a Check and Balance System.

The Constitution contemplates both judicial independence and checks and balances. It follows that the judiciary, particularly the Supreme Court, is the most separated and least checked of all the branches of government. When, in *Hammer v. Dagenhart (1918), for example, it held unconstitutional federal restraints on child labor no more was required than the concurrence of five of its own members. Nothing more was required when in *Roe v. Wade (1973) it killed virtually all existing restraints on *abortion. Yet to impose such edicts by legislation would require the approval of the Senate, the House of Representatives, and the president. A veto could be overriden only by a two-thirds majority in both houses of Congress. Moreover, unlike the nine Supreme Court justices, the members of Congress and the president are accountable to the voters in an election, which for most of them would be less than two years away. If, notwithstanding all these checks and balances, the measures in question were adopted, they would face yet another hurdle, namely, judicial review.

Free of elections and fortified by tenure “during good behavior” with pay that may “not be diminished,” no Supreme Court justice has ever been removed from office by the *impeachment process. Indeed, impeachment charges have been brought against a Supreme Court judge only once—almost two hundred years ago. That case against Justice Samuel *Chase seems to have established the principle that impeachment lies only for criminal conduct, not as reprisal against judicial points of view.

Supreme Court decisions have been overridden by constitutional amendment in only four instances (see reversals of court decisions by amendment). The *Eleventh, *Fourteenth, *Sixteenth, and *Twenty-sixth Amendments nullify, respectively, *Chisholm v. Georgia (1793), Dred *Scott v. Sandford (1857), *Pollock v. Farmers’ Loan & Trust Co. (1895), and *Oregon v. Mitchell (1970). Numerous other proposed amendments aimed at court decisions relating, for example, to school busing, school prayers, equal rights for women, and abortion, have failed. In the end, of course, judges determine the meaning of amendments as they do with respect to other parts of the Constitution. This is to say the “checkee” determines the meaning and application—and thus the impact—of the check!

If these court-control devices may properly be called checks and balances, they have been rarely used. Yet the judiciary does not live in a political vacuum. It may not follow the election returns, but it is not entirely unresponsive to the social forces that determine election results. The strength or weakness of the political party system in any given era seems to affect the functioning not only of the president and Congress but of the Supreme Court as well. In eras when a strong party coordinates the efforts of the two political branches there seems to be little room for (p. 907) *judicial activism. Surely it is not by chance that each of our three outbursts of wholesale national policymaking by judges came when the party system was at peculiarly low ebb. Perhaps judges feel duty-bound to intervene when other branches falter, or maybe only then are they willing to risk wholesale intrusion upon the political processes. Large-scale court intrusion upon national policy did not begin until the Kansas-Nebraska Act (1854) had wrecked both major political parties. The disrupting issue was whether slavery should be allowed in the new territories. Congress being deadlocked (read “checked and balanced”), the Supreme Court undertook in Dred Scott v. Sandford (1857) to settle the matter. The result was a moral and legal disaster.

With the lingering death of the old sectional party system the Supreme Court again became a major policy maker. In a matter of months it killed the federal income tax in Pollock v. Farmers’ Loan & Trust Co. (1895), emasculated the *Sherman Antitrust Act in United States v. *E. C. Knight Co. (1895) and the Interstate Commerce Commission in ICC v. Alabama Midland Railway Co. (1897). So too it sanctioned the labor *injunction in In re *Debs (1895) along with racial segregation in *Plessy v. Ferguson (1896). Later it struck down two federal efforts to restrict child labor as well as a host of state regulatory measures symbolized by *Lochner v. New York (1905). With a brief respite in the Progressive Era this economic activism continued until 1937, devastating virtually the whole early New Deal legislative program.

The aggressive role that judges had played in the era of moribund sectional politics could not be maintained in the face of a potent new urban party system led by Franklin Roosevelt. The “old” Supreme Court surrendered early in 1937. In short order the New Deal Court repudiated most of the activist innovations of the years from 1890 through 1936.

The decisions in *Mapp v. Ohio (1961) and *Baker v. Carr (1962) seem to mark the beginning of a new judicial era. By the late 1960s Americans seem to have lost their capacity for self-government. Reasoned argument, compromise, and accommodation were increasingly replaced by polarization and violence in word and deed. There was no party coalition in command of a sufficiently stable majority to advance coherent policies. The decline of Franklin Roosevelt’s dynamic urban party system seems to have invited another outburst of judicial activism—supposedly led by Chief Justice Earl *Warren.

Judicial Enforcement of Separation.

By virtue of their power of judicial review, judges have the last word short of constitutional amendment on the allocation of authority among the three branches of the federal government. It is worth special notice that this includes power to set the bounds of their own authority—as well as their own immunity from outside checks and balances. This power, a part of the classic problem of judicial review, reinforces what was suggested above on other grounds; namely, that the judiciary is at best only marginally within the checks-and-balances system. Virtually immune itself, it has enormous checking power with respect to all other organs of American government. Its decisions define the nature of congressional-presidential separation.

Scope of Presidential Authority.

The Supreme Court ruled in United States v. *Curtiss-Wright Export Corporation (1936) that the “investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution [rather these powers] vested in the Federal government as a necessary concomitant of nationality” (p. 318). In a word, they are extraconstitutional in origin. Moreover, these “inherent” and “plenary” powers belong to “the President as the sole organ of the federal government in the field of international relations” (see inherent powers; presidential emergency powers). On that basis the Supreme Court upheld a quasi-legislative presidential decree that forbade the sale in this country of war materials to those engaged in armed conflict in the Chaco. The purpose was to promote peace between Bolivia and Paraguay. The Curtiss-Wright decision has never been judicially qualified.

The Constitution authorizes the president to make treaties, subject to ratification by a two-thirds vote of the Senate. May the chief executive by virtue of his inherent foreign affairs power bypass the senatorial concurrence requirement by means of executive agreement? In United States v. Belmont (1937), affirming the Litvinov Agreement, the Supreme Court responded affirmatively though the Court’s opinion rests in part on the “express” power of the president to recognize foreign nations. In the Litvinov accord President Roosevelt recognized the Soviet Union and accepted in satisfaction of Soviet debts property located in the United States that the Soviet Union had confiscated from Russian citizens. Presidential policy prevailed without approval of the Senate, and despite the law of the state in which the confiscated property was located. Thus, like a treaty, the Litvinov Agreement became the “supreme law of the land” under Article VI of the Constitution. Decisions of this type, especially *Missouri v. Holland (1920), led eventually to the proposed Bricker Amendment (1954). Failing by only one vote in the Senate, the Bricker Amendment would have provided: “An international agreement other than a treaty shall become effective as internal law in the United States only by an act of Congress.” While (p. 908) this proposed amendment was not adopted, the forces behind it seem to have softened the Court’s language, though not its decisions. In *Dames & Moore v. Regan (1981), the Court upheld President Jimmy Carter’s executive agreement with Iran concerning the American hostages and private claims against Iranian assets in this country. Emphasizing the “narrowness” of its decision, confined to a claims settlement, the Court took care to observe this was not a situation “in which Congress has in some way resisted the exercise of Presidential authority” (p. 688).

*Goldwater v. Carter (1979) raised the issue whether the president may terminate a treaty without the consent of Congress or the Senate. A court of appeals en banc decided in favor of President Carter, who, in conjunction with the recognition of China, had abrogated a treaty with Taiwan. The Supreme Court dismissed the case without decision on the merits. The net effect was a victory for presidential authority.

The Constitution authorizes Congress “to declare War,” and makes the president commander in chief of the armed forces (see war powers). Moreover, the president plays, and was intended to play, a major role in the conduct of *foreign affairs. The classic and constant problem is to what extent, if any, may the presidential commander in chief properly use the military forces without a congressional declaration of war? This problem came before the Supreme Court when President Abraham *Lincoln instituted a naval blockade of the southern ports—clearly an act of war though Congress had not declared war. In the *Prize Cases (1863), the justices upheld the president’s action in the face of objections by those whose ships had been seized for trying to run the blockade. Four justices dissented powerfully. The problem of warlike measures in undeclared “wars,” including the sending of draftees into combat, came before the judiciary repeatedly with respect to the Vietnam conflict. Ever since the Prize Cases the Supreme Court has left such issues to be resolved by Congress, the president, and the electorate. Obviously Congress acquiesced in the Vietnam and Civil wars in the sense that it provided the troops and money without which war would have been impossible. Moreover, Congress did not do with respect to either of these wars what it eventually did with respect to the “invasion” of Cambodia: cut off funding.

To avert an industrywide strike during the Korean conflict, President Harry S. Truman seized the privately owned steel mills. Congress had provided quite different ways for dealing with such crises. Government lawyers argued that the president had acted within his constitutional powers as chief executive and commander in chief. In *Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Hugo *Black wrote a brief “opinion of the Court.” The seizure, he said, could not be justified as an exercise of military power. Then, noting Congress’s refusal to authorize what the president had done, the justice found it forbidden by separation of powers doctrine: “In the framework of our constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. … And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute” (p. 587). All of the other judges found the problem more complex than did Justice Black. Even the five *concurring judges wrote separate opinions. The trouble was a premise that Justice Black ignored: both the Constitution and history reject strictly separated powers. While there are three quite distinct branches, each of them has some traces of legislative, executive, and judicial power. Moreover, what remains of the separation of powers has been qualified by history. The three dissenters noted an impressive array of presidential law-making. Without waiting for Congress, George Washington proclaimed neutrality; Thomas Jefferson bought Louisiana; James Monroe issued his famous doctrine; Andrew *Jackson removed federal deposits from the Bank of the United States; Lincoln emancipated the Confederacy slaves. This pattern continued through Roosevelt’s Bank Holiday proclamation and his numerous war-effort edicts. The five justices who concurred in Black’s judgment quite clearly could not accept the part of his opinion that would outlaw all presidential lawmaking and a large part of American history as well.

Congress vis-à-vis the Executive.

A corollary of the separation of powers doctrine holds that Congress may not delegate legislative power to the executive branch. Yet the Supreme Court in J. W. Hampton v. United States (1928) upheld an act of Congress giving the president authority to raise or lower tariffs within prescribed limits when he found such revision necessary to equalize the costs of production in the United States and other nations. This authorization was sustained on the ground that “If Congress shall lay down by legislative act an intelligible principle to which the [“delegee”] is directed to conform, such legislative action is not a forbidden delegation of legislative power” (p. 409).

Delegation of Power.

Congress has often made such grants of authority to various executive and administrative agencies. Usually these grants are extremely broad and the guidelines so vague as to be essentially meaningless. For example, the *Interstate Commerce Commission is authorized to order “just and reasonable” railroad freight rates, and the Federal Communications Commission to license radio stations in accordance (p. 909) with “public convenience, interest or necessity.” Similarly Congress provided for the renegotiation of *World War II procurement contracts and authorized the recovery from contractors of profits that administrative officials found “excessive.” Save two instances, *Panama Refining Co. v. Ryan (1935) and *Schechter Poultry Corp. v. United States (1935), no congressional delegation of lawmaking power has been held invalid no matter how vague the purported guidelines. The two exceptions perhaps are best explained as part of the old laissez-faire judicial activism that virtually destroyed the early New Deal (see laissez-faire constitutionalism). In effect, it is now enough both in law and practice for Congress merely to identify problems and leave solutions to administrative specialists. It is worth noticing that in *Mistretta v. United States (1989) the Supreme Court found no improper delegation and no separation of powers problems in an act of Congress that gave an independent agency within the judicial branch the power to promulgate mandatory sentencing guidelines for federal courts.

An open-ended delegation may be an irresponsible passing of the buck. Sometimes, however, legislators resort to abstract public interest guides simply because they cannot foresee many of the mundane problems that necessarily attend implementation of their general policy objectives. Hence, the contemporary judicial approach is not to invalidate statutory delegations of power but to assure that they are accompanied by adequate controls. Many such controls are built into the administrative process itself; our concern here is presidential and congressional oversight. Until the Chadha case (1983; see below), Congress often retained a “legislative veto” with respect to the use by administrative agencies of delegated power.

Administrative Personnel.

At issue in *Myers v. United States (1926) was an act of Congress providing that postmasters could be appointed and removed by the president with Senate consent (see appointment and removal power). The Supreme Court held that the requirement of senatorial consent for removal was inconsistent with the constitutional grant of “the executive power” to the president and also with his duty to “take care that the laws be faithfully executed” (pp. 163–164). Without the power to control via unfettered removal authority the president would not be the chief executive.

The presidential victory in Myers was soon qualified. *Humphrey’s Executor v. United States (1935) arose under a statute providing that members of the Federal Trade Commission could be removed from their seven-year terms of office only “for inefficiency, neglect of duty, or malfeasance in office.” President Roosevelt sought to remove Humphrey from office not on any of the statutory grounds but on the basis of Myers. A unanimous Court found the removal invalid. The Court distinguished between officials who perform purely executive functions as in Myers and those who perform quasi-judicial functions as in Humphrey. This is a classic example of promoting freedom through governmental inefficiency that springs from checks and balances. Mr. Humphrey was a holdover from the Hoover administration, which the electorate had rejected in 1932 by electing Roosevelt. Yet the Humphrey case means that a new administration must live with a person in high office whose policy views are clearly at odds with those of the new regime. Securing the independence of the regulatory commissions, Humphrey provided the foundation for a “headless fourth branch of government.”

Just as the Supreme Court in Myers held Congress cannot limit the president’s authority to remove from office those who perform “purely” executive functions, in *Buckley v. Valeo (1976) the justices held Congress cannot appoint such officers. Nor, according to *Bowsher v. Synar (1986), can Congress remove them.

Policy Differences.

Recognizing that it has been delegating away dangerously broad powers, Congress since 1932 had frequently reserved for one or both houses power to “veto” what are deemed improper or unwise exercises of delegated authority (see legislative veto). The Supreme Court in *Immigration and Naturalization Service v. Chadha (1983) held invalid a one-house veto of a deportation exemption granted (pursuant to delegated authority) by the INS. Such a veto, the Supreme Court said, was legislation that only Congress, subject to the president’s veto, can enact. True to eighteenth-century dogma, the Court declared the “fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of the government, standing alone, will not save it, if it is contrary to the Constitution” (p. 944). In U.S. Senate v. Federal Trade Commission (1983), the justices extended the Chadha principle to a veto that is effective upon approval by both houses of Congress. Of course, Congress may influence the independent regulatory commissions through its investigation and its budget powers, but this is quite different from day-to-day oversight.

The Ethics in Government Act of 1978 provided for the appointment of “independent counsel” to investigate and, when appropriate, prosecute certain high-ranking officials for violations of federal criminal laws. The purpose of the measure was to by pass a regular function of the Department of Justice lest inter alia an administration find itself in the role of investigating and prosecuting itself. In *Morrison v. Olson (1988), the Court (p. 910) held that Congress had not violated separation of powers principles because under the act the president can at any time remove from office an “independent counsel”—but only for “good cause.” In the Supreme Court’s view the latter proviso did not substantially impede the president’s law-enforcing function. Unless the justices are prepared to undercut Myers, it seems likely they will not find much of an impediment in the “good cause” limitation.

Since Jefferson’s day presidents have used military force from time to time without formal declarations of war. Jefferson fought pirates in Tripoli; Lincoln battled the Confederacy; Truman fought the North Koreans; Kennedy, Johnson, and Richard M. *Nixon used the military in Vietnam. Widely felt dissatisfaction with the Vietnam venture led to congressional adoption—over President Nixon’s veto—of the *War Powers Act of 1973. Its purpose was to “insure that the collective judgment of both Congress and the President will apply to the introduction of United States armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” To achieve this objective the resolution requires consultation between Congress and the president before any military venture. It requires the president to report to Congress within forty-eight hours any such action that he has undertaken and the reasons there for. It also compels him to end any military involvement after sixty (or ninety) days unless Congress approves or is unable to meet. Moreover the president must “remove” armed forces engaged in hostilities outside American territory and possessions if Congress so directs by a concurrent resolution that is not subject to a presidential veto.

At least three presidents since 1973 have insisted the resolution violates long-settled traditions as well as presidential authority granted by the Constitution. Other commentators have been critical because in their view Congress has given its advance blessing to any sixty- or ninety-day military venture by the president. Another difficulty with the War Powers Act is the subsequent Chadha restraint on legislative vetoes.

One cannot ascertain to what extent, if any, the War Powers Act has in fact restrained presidential action. Presidents Gerald Ford, Carter, and Ronald *Reagan reported seventeen military ventures to Congress—sometimes not strictly within the forty-eight hour deadline. Among those reported late was President Carter’s effort to rescue the hostages in Iran and President Reagan’s involvement in Grenada. Congress has never rebuked a president for violating the War Powers Act nor has the judiciary found that it raises any justiciable as distinct from political questions. However, differences between President Reagan and Congress with respect to what started as a peacekeeping mission in Lebanon led to a compromise whereby the marines would be withdrawn within eighteen months.

Summary and Conclusion.

America’s peculiar institution of judicial review gives courts enormous supervisory power with respect to the other branches of government. It also permits courts to define whatever powers of self-defense the other branches have against the judiciary. The upshot is that separation of powers means largely what the Supreme Court says it means.

As a matter of history the political branches have rarely tried to use their formal weapons (impeachment, constitutional amendment, and jurisdiction control) against the Supreme Court. Thus, political parties seem—when robust—the most effective, if indirect, check against otherwise independent judges.

Few Supreme Court decisions confine the presidency. Humphrey was a severe and perhaps debatable blow. The Steel Seizure Case recognizes significant presidential lawmaking power provided it does not collide with prior congressional measures. While United States v. *Nixon (1974) was an unmitigated defeat for President Nixon, it was a victory for the presidency because the Court recognized a need for confidentiality in the conduct of presidential affairs. In many other cases, whether relating to foreign or domestic matters, the Supreme Court has either withheld its hand or supported the president in the face of separation of powers challenges. This judicial leniency along with the habitual willingness of Congress to delegate to the executive branch vast discretionary power helps to explain the rise since the Great Depression of what Arthur Schlesinger, Jr., calls the “imperial presidency.” Expansive delegation may be largely a symptom.

As though recognizing its own carelessness with respect to delegation, Congress has provided repeatedly for that after-the-fact remedy called the legislative veto. The Chadha ruling ended that approach, which may have been less important as a remedy than as a recognition by Congress that it had been giving away too much authority and had not been performing adequately. Such a confession seems implicit in the Gramm-Rudman Act, in which Congress sought by a kind of automatic pilot device to make good its own lack of discipline with respect to the budget. The Chadha decision and Congress’s farcical maneuvering to avoid Gramm-Rudman strictures may yet bring real reform.

In his famous Myers dissent Justice Louis D. *Brandeis said: “The doctrine of the separation of powers was adopted by the convention of (p. 911) 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three department, to save the people from autocracy” (p. 293). This is a classic expression of the eighteenth-century hope that freedom could be secured by calculated inefficiency in government. A more modern hope is that freedom would be better served with more efficiency and more democratic accountability. We are still haunted by an ancient riddle: How far can we build up effective government before it topples over into despotism? How much inefficiency can we afford without slipping into disaster?

See also delegation of powers; judicial power and jurisdiction; judicial review; party system; political parties.

Benjamin Ginsberg and Martin Shefter, Politics by Other Means (1990). Louis Henkin, Foreign Affairs and the Constitution (1972). Philip B. Kurland, Watergate and the Constitution (1978). Theodore Lowi, The End of Liberalism (1980). M. J. C. Vile, Constitutionalism and the Separation of Powers (1967). Martin Wattenberg, The Decline of American Political Parties (1986). Christopher Wolfe, The Rise of Modern Judicial Review (1986). Gordon Wood, The Creation of the American Republic (1969).

Wallace Mendelson