Separation of powers

Separation of powers, as any fule kno, refers to the division of a state's government into branches, each with separate, independent powers and responsibilities... The typical division is into three branches: a legislature, an executive, and a judiciary... The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Baron de Montesquieu... In The Spirit of the Laws (1748)¹. Let us consider it in the context of the Constitution of the United States, which reappears in the context of Collins v. Yellen: the removal restrictions on the head of the FHFA violate the Constitution’s separation of powers because they infringe on the president’s authority over executive-branch decision-making.

And having said that, all I wanted to do was to make a brief point: that although SOP underlies the constitution, it isn't explicitly present. The word "separation" occurs nowhere. Wiki comments In combination with the Vesting Clauses of Article Two and Article Three, the Vesting Clause of Article One establishes the separation of powers and this is true, but it only does so implicitly. Nonetheless, people find it convenient to speak of "the Constitution's SOP" as though it was an explicit thing, because without it we'd have to speak in absurd circumlocutions.

Belatedly, it occurred to me to wonder who else has noticed this. Wiki doesn't seem to have, but unsurprisingly others have. For example: In his recent work, Manning has made a good case for the proposition that the separation of powers is not a principle of the U.S. Constitution.6 The Constitution, says Manning, “adopts no freestanding principle of separation of powers. The idea of separated powers unmistakably lies behind the Constitution, but it was not adopted wholesale.”7 (The contrast here may be between the federal Constitution, which, as Manning points out, contains no Separation of Powers Clause,8 and some of the state constitutions which, at least textually, do.)9 I think Manning has made a reasonable case... But notice how tentative and cowardly he is. He is a f*ck*ng scholar who unlike me has time to read the full thing. He should damn well know, not rest his judgment that someone else has probably made a reasonable case.

Notes

1. Somewhat controversially, that wiki article also says the separation is "so that the powers of one branch are not in conflict with those of the other branches". That is distinctly dubious; see here.

Refs

* What If We Wrote the Constitution Today?; The National Constitution Center’s Constitution Drafting project. Looking at the libertarian version, I find In completing this project, we’ve focused, as the original Constitution’s authors did, on protecting “negative” rights— that is, rights against being interfered with— instead of creating “positive rights,” such as a right to education, or health care, or other things that must be provided by others. Classical liberal theory holds that the only valid rights are things like free speech, private property, and the right to be left alone, and that so-called positive rights are not rights at all, but privileges that government can only give one person if it has taken away the rights of another which I like. See-also Rawls, continued.

* Mortality risk attributable to high and low ambient temperature: a multicountry observational study (via Lomborg): Most of the temperature-related mortality burden was attributable to the contribution of cold.

* Two Facts about Mass Transit and Cars by David Henderson

* Flawed Heatwave Report Leads to False Headlines in Major Media - Cliff Mass