Time to Demote the Separation of Powers?

I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.

Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.  Buckley argues that the Framers established a political system of congressional dominance at the Constitutional Convention, and that separation of powers was something that emerged later in American history, contrary to their wishes. Quoting Buckley’s words on this site, he argues that “separation of powers…should be demoted as the touchstone of the Constitution, that a fear of executive power better explains what motivated the delegates.” Or, to quote from his book:

“What [the Framers] had in mind was a different form of government than our present one, with a weaker separation of powers between the legislative and executive branches and with very different ideas about presidential elections….[T]he delegates very nearly adopted a system not unlike the parliamentary regimes of Great Britain and Canada.”

As much as I admire the overall thesis of the book, I am less convinced regarding this point. Buckley is correct that the Virginia Plan, which was written by Madison, called for election of the upper house of the legislature by the lower house, and for the legislature to elect the President. This plan certainly would have established something similar to a parliamentary system, and not a separation of powers system. Madison’s authorship of the VA Plan (and his dissatisfaction with some aspects of the Convention’s work) leads Buckley to conclude that “he did not have a thick conception of executive power or of a separation of powers in which the president might routinely oppose the will of Congress.”

However, Madison’s views on executive power were nebulous during the early stages of the Convention, clearly by the end of the Convention he came to view an independent executive as one of the chief means by which a tyrannical and unchecked legislature could be avoided. While it certainly took the Convention a lot of effort to identify a practical alternative to having the legislature select the President, the fact that they worked so assiduously for an alternative shows how reluctant they were to make the executive dependent on the legislature.

A different (and, I would argue, more compelling) interpretation of the Framers’ views on executive power has been advanced by various scholars over the years (my favorite recent source is Forrest McDonald). That interpretation states that from independence to the late 1780s, there was immense confidence in the unchecked authority of legislative power and extraordinary fear of executive power. This produced disastrous consequences, and by the time of the Convention most delegates understood the need for an independent executive, even if they hadn’t yet determined how it should be established. Through their deliberations a consensus emerged, at least among those who supported and ratified the Constitution, that the separation of powers and an independent executive were important constitutional principles. The Federalist reflects this consensus.

I reiterate that I don’t think Buckley’s argument hinges on this interpretation of the Convention, so independent of this objection his basic thesis is still right and very important. But while he is right about its defects, he gives the separation of powers too little credit (as Ilya Somin has also argued, over at the Volokh Conspiracy), both in terms of its ability to preserve liberty and in terms of the Framers’ dedication to that concept.

The key is figuring out a way to preserve the benefits of the separation of powers while reducing its disadvantages.  The Framers’ eventual solution to that problem (which came well after ratification) was the development of political parties that would coordinate legislative and executive action, giving voice to the broader concerns of a national majority.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. His research focuses primarily on regulation, administrative law, and the administrative state. He is the editor, with Bradley C.S. Watson, of Rediscovering Political Economy (Lexington Books, 2011), and with Johnathan O'Neill, of Toward an American Conservatism (Palgrave Macmillan, 2013).

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Comments

  1. anonymous says

    I think the problems that he lays out with an overpowered executive are not really the result of the constitution as ratified, but the ability for executive agencies to issue regulations which are binding upon the people. At that point congressional power over the law is completely undermined and the executive can write the laws he is enforcing. A strict non-delegation doctrine (which does not allow any agency rule making at all) would return the power back to congress.

  2. gabe says

    Professor Postell:

    Good points! I also am reading Buckley’s book and have argued that he does not give sufficient recognition of the give and take that took place during the Convention. It is, to my mind, entirely likely that when confronted with an alternative to the “combined” executive- legislative structure that was part of the Virginia Plan, that Madison and others could recognize the greater potential of a stronger and more independent executive. Thus, no matter how one chooses to name it, separation of powers was both recognized and encouraged in the final structure. To engage in debate, be confronted with suitable (or better) alternatives and then to steadfastly refuse to accommodate the better alternative is the hallmark of petty partisans. I do not think that Madison may be properly so called.

    take care
    gabe

  3. says

    Joseph, (Postell) I haven’t read Buckley’s book, but I did go to Amazon to read the subject matter, and content chapters): it states: ‘This remarkable new book shatters just about every myth surrounding American government, the Constitution, and the Founding Fathers, and offers the clearest warning about the alarming rise of one-man rule in the age of Obama.’
    I agree w/”the alarming rise of one-man rule in the age of Obama”.
    In the limited leading reading pages, Buckley mentions that the “… separation of powers between the executive and legislative branches is much more a creature of the unexpected rise of democracy”…
    I am not sure if this particular “rise of democracy” was intended to be read as — at the Convention – or at our present dilemma w/democracy – in relation to our constituted Republics. If Buckley relates this to the “peoples” Constitution preamble – that raises a number of questions. We surely did not constitute Republics for the consequences of unstable democracy.
    Joseph, you mention Buckley’s, “… the fact that, they (the convention delegates), worked so assiduously for an alternative shows how reluctant they were to make the executive dependent on the legislature.”
    My reading of the Madison’s recording at the convention shows a hearty degree of delegate involvement. The final result was the Congress shall make the limited laws as their Art. Constitutes,. The President, in his capacity, is limited to overriding Congressional laws (but delimited when the Congress overrides), and the President is limited to declare war without Congressional approval.
    Stop here. The President, w/complicity of a democratically controlled Congress has acquiesced — by silence – to the Executive branches abridgment/usurpation of the Constitution.
    If this is what Buckley is telling the public in his book – Buckley is on the right track.
    Respectfully John,
    (Faceook, author of The Tribute)

  4. Kevin R. Hardwick says

    Joseph–

    Your critique of Buckley is correct. You can not presume that the positions taken at the start of the Philadelphia convention are static. As Lance Banning (Sacred Fire of Liberty remains the most trenchant analysis of Madison at the convention, although Rakove and Gutzman are also much worth reading) argues, and as you note above, Madison’s thought evolved over the course of the convention.

    The confrontation with Sherman and Patterson also mattered. The Connecticut compromise obliged Madison to rethink his positions on both Senate and Executive. On this, see the two fine studies by David Robertson: Original Compromise, and the Constitution and America’s Destiny.

    Finally, it is a real error to assume that one can analyze Madison, and from that generalize to all of the rest of the delegates. If Madison’s thought on the executive was undeveloped, the same can not be said of Hamilton, nor of guys like Wilson or Morris. Madison was not the only mind at the Philadelphia Convention, and it is a mistake to assume that he was. There are times when synecdoche is an appropriate trope; Madison at the Philadelphia convention is not one of them.

    • gabe says

      Kevin:

      You make a good argument here.
      It is interesting to note that Buckley in an earlier post attempts to dismiss the “mythic” role of Madison at the convention (in this he is correct). However, once having done that, it would seem curious that his argument would then be predicated on the fact that Madison did not get what he wanted and then to further conclude that this is critical because it was Madison’s original ideas that were really what mattered in considering how effective the constitution was / is.
      As you demonstrate, Sherman, Morris, etc had a little something to contribute as well.

  5. Richard S says

    Given the distance between the Constitution the convention proposed and the Virginia plan, it is open to question whether Madison should be called the “Father of the Constitution.” Father of the Bill of Rights is more accurate.

    And when discussing executive power, and our unbalanced constitution, we need to keep in mind the rise of the fourth branch in the 20th century–an unelected permanent bureaucracy that writes much of our legal code, interprets that code, and enforces it. In many departments in Washington we have a po-mo version of Robe nobility.

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