It is March 27, 1933. Here is a headline in the New York Times: “Hitler Is Supreme Under Enabling Act.” Under that headline: “Chancellor, Preeminent Over Cabinet, Is Now Practically the German Government.” A few lines later, under that: “All Legislative Powers Have Been Transferred to Regime, Free to Refashion National Life.”
How might that transfer of powers, making the chancellor “free to refashion national life,” be justified? Is there a theory? To say the least, that is a complicated question, but for a glimpse, turn to the justification by the Nazi legal theorist Carl Schmitt of what happened in Germany on June 30, 1934.
That was the Night of the Long Knives, in which Hitler ordered his elite guards to murder hundreds of people, including the leaders of the paramilitary Sturmabteilung (SA). The separation of powers was Schmitt’s central target. He announced, “The real Führer is always a judge. Out of Führerdom flows judgeship.” Schmitt added, “One who wants to separate the two from each other or puts them in opposition to each other would have the judge be either the leader of the opposition or the tool of the opposition and is trying to unhinge the state with the help of the judiciary.”
It is worth pausing over this claim: “Out of Führerdom flows judgeship.” Separation between leadership and judgeship creates a “leader of the opposition,” and it unhinges the state. (Unhinges is an interesting term. What is the “hinge” here?) Schmitt insisted that it “was characteristic of the blindness about justice of the liberal way of thinking about law that it sought to make out of criminal law a great liberating charter, the ‘Magna Carta of the criminal.’” So much for “the liberal way of thinking about law.” In Schmitt’s view, “the Führer’s action was true judging. It is not subject to law but is in itself the highest justice.” This is a horror movie, but it is also real, and what was being said in the 1930s can be found, in various forms, today.
The US Constitution, an emphatically liberal document, is meant to protect freedom and to prevent tyranny. It is designed to “secure the Blessings of Liberty to ourselves and our Posterity.” And what are those blessings? Consistent with a prominent strand in liberal thought, we should take them to include a private realm of immunity from the power of the government — a realm in which people need not worry about being killed or being jailed or being subject to any kind of public coercion.
Freedom from fear is a central goal of the system of separation of powers.
On one view, the separation of powers essentially is a bill of rights. The private realm of immunity certainly includes freedom of speech, freedom of religion, and protection of private property against takings without just compensation. In fact, it extends far more broadly. It includes a private sphere of freedom from official incursion. It includes the rule of law, which is easily taken to include an independent judiciary and so to unhinge the state on principle. Whatever their precise content, the blessings of liberty allow people to be something like sovereigns over their own lives. The separation of powers is a way to secure those blessings. Hitler was of course an extreme case, and so was Stalin — but every era has its own extreme cases.
As the Constitution was designed, the blessings of liberty were even broader than that. They included the right to republican self-government. The founding generation rejected the monarchical heritage, and so it abolished titles of nobility. It insisted on a principle of equality, which entailed at least a kind of popular sovereignty. Adverting to the founding, Abraham Lincoln said this in 1854:
“If the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government — that is despotism. … No man is good enough to govern another man, without that other’s consent. I say this is the leading principle — the sheet anchor of American republicanism.”
In a few daring sentences, Lincoln connected the antislavery movement, calling for a right to self-government in individual lives, with the right to self-government in politics. Liberty was central to both domains. Lincoln was keenly aware that, consistent with the founding conception of republicanism, the Constitution and its system of separation of powers aimed to create a deliberative democracy — one that combined accountability with reason-giving in the public domain.
In a deliberative democracy, the people certainly rule, in the sense that they control the operations of the government. But in a deliberative democracy, institutions are designed to increase the likelihood that decisions would be based not on the will of one person, but on the force of the better argument. Public power is not supposed to be exercised only on the ground that those in a position of authority think that it should be so exercised. They must justify themselves. This too is a prominent part of the liberal tradition, and it is crucial to the separation of powers. It is a barrier to authoritarianism.
Six, not one
Self-government is opposed to authoritarianism and tyranny, but it cannot come simply from voting. After all, Hitler was elected (by a plurality, but still). Consider in this light, and read a anew, a famous sentence from James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
On its face, the Constitution aims to forbid the accumulation of all powers in the same hands. Of course, the idea of a king was foremost in the minds of those who fought the American Revolution and devised the founding document. But the separation of powers extends far beyond the rejection of the idea of kings.
Article I, section 1 of the Constitution says this: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article II, section 1 of the Constitution says this: “The executive Power shall be vested in a President of the United States of America.” Article III, section 1 of the Constitution says this: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
These provisions establish the separation of powers. (So much for Carl Schmidt.) We might want to emphasize the word all in Article I and the word the in Articles II and III. The Constitution seems to contemplate that there is something called the executive power and another called the judicial power, and that they are vested in particular institutions. And if all legislative powers are vested in Congress, then they would seem to be vested nowhere else.
The separation of powers, it is called, but we should immediately be able to see that the term is too broad and undifferentiated. In a way, it is a misnomer. The separation of powers is a they, not an it. It is an umbrella concept, and it seems to include six separations of powers:
- The legislature may not exercise the executive power.
- The legislature may not exercise the judicial power.
- The executive may not exercise the legislative power.
- The executive may not exercise the judicial power.
- The judiciary may not exercise the legislative power.
- The judiciary may not exercise the executive power.
The six separations can be taken to include three sets of prohibitions. There are two things that the legislature cannot do, two things that the executive branch cannot do, and two things that the judiciary cannot do.
A little fussing
The six propositions are mere inferences. [They] are not semantically mandated by the constitutional text.
You can be a textualist without thinking that the Constitution requires them. The vesting of some power in some institution does not necessarily mean that some other institution may not exercise that power. But if we want to be faithful to the text, the relevant inferences are certainly plausible, and perhaps more than that. From the vesting of “all legislative powers” (herein granted) in Congress, we might well be inclined to infer that the executive and the judiciary do not have, and may not exercise, legislative powers. From the vesting of “the executive power” in the president, we might infer that Congress and the judiciary do not have, and may not exercise, executive power. From the vesting of “the judicial power” in federal courts, we might infer that Congress and the executive do not have, and may not exercise, judicial power.
Some of these inferences may not be entirely secure. It would be possible, for example, to agree that Article III vests the judicial power in courts, but also to insist that the executive may sometimes exercise some judicial power. The text is not without ambiguity. Still, the inferences seem plenty reasonable. If all legislative powers are vested in Congress, it would be puzzling to say that the executive may exercise some such powers. At least as a textual matter, then, we might be inclined to endorse the six propositions.
Here as elsewhere, Schmitt’s rejection of the separation of powers, and the experience of fascism under Hitler, offer the right warnings.
Understood in terms of these six propositions, the separation of powers has nothing to do with checks and balances. It is genuinely about separation as such. So understood, it is not fully descriptive of the US Constitution, which mixes separation of powers with checks and balances. It follows that, even if each of the six propositions remains a plausible reading of that Constitution, the constitutional text and current doctrine require important qualifications. For example, Congress exercises the judicial power insofar as the Senate conducts trials in the aftermath of impeachment in the House of Representatives. In addition, the executive branch does, in fact, exercise judicial power — a great deal of it. And in some respects, the judicial branch might be thought to exercise a bit of legislative power.
It is useful to keep two general ideas in mind. First, each of the six propositions rests on eminently reasonable judgments about various institutions and their likely performance, capacities, and incentives. Above all, protection of liberty is an overriding goal, and protection of deliberative democracy is almost equally central. Second, those reasonable judgments are based on empirical projections, involving the capacities and likely performance of various institutions; though reasonable, the projections may not always be right. We can readily imagine one or another time and place in which one or another of the six propositions might be rejected.
I do not believe that the time is now or that the place is here. I do not even believe that the time is anywhen or that the place is anywhere — but still. Here as elsewhere, Schmitt’s rejection of the separation of powers, and the experience of fascism under Hitler, offer the right warnings.
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