The Evolution of the Separation of Powers
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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
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Chapter 5: Accommodating an old constitution to the 21st-century state: of law and politics

Vicki C. Jackson

Abstract

U.S. constitutional law concerning the relationship between executive and legislative power is surprisingly thin.  There is little case law directly designed to preserve the authority of Congress as the pre-eminent place of democratic self-governance; there is almost no consistent case law constraining the processes of legislation or requiring its generality. There is only somewhat more case law constraining the executive power vis-à-vis Congress. With respect to Congress’s relation to the courts, there is some case law, but of quite limited scope, that prevents Congress from overstepping into the judicial arena. There is, however, much constitutional law concerning the appointment and removal of government officers, and many cases elaborating the presumption of judicial review. The absence of case law on delegation of powers, or requiring legislative generality, or defining areas where enacted legislation is required for lawful government action, or constraining independent presidential action, may seem inconsistent with basic premises of the separation of legislative and executive power. But intense political party competition at the national level produces a degree of self-checking capacity. Moreover, the constitutionally protected presence of various organized economic and social interests may also serve as a check on undue institutional aggrandizement. Yet these doctrinal silences may matter, especially to the extent that they contribute to democratic malfunctions, such as the acceptance of gridlock, brinksmanship and executive law-making on major issues as normal. Epistemic uncertainty, however, abounds, in trying to determine whether changes in separation of powers doctrines will improve or worsen these problems. Understanding the actual functioning of the political system cannot be accomplished through the disciplinary tools of law alone. Formalist approaches reasoning from purportedly clear meanings of text are often justly criticized for ignoring broader questions of purposes and context. Yet critiques of formalism, and arguments for more flexible approaches based on concern for an overall balance of legislative and executive powers, may assume that the effects of differing allocations of powers on well-functioning democracies can be known, an assumption that may be more heroic than correct. Judicial modesty and interpretive rather than constitutional approaches may therefore be appropriate presumptive starting points.

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