Major issues under the doctrine of separation of powers

The major purpose of the doctrine of separation of powers is maintaining the constitutional allocation of powers. Consequently, its chief concerns are whether some branch is improperly exercising powers the Constitution has assigned to another branch; whether one branch is improperly inhibiting another branch’s legitimate exercise of its powers; and whether one or another branch is improperly enhancing power at the expense of another branch.

There are two major problems in this area of constitutional law. The first is that the Constitution does not define the powers that it confers on the branches of government. While perhaps everyone might agree on what is central to legislative or executive or judicial action, there are cases involving governmental activities difficult to characterize under these headings. The second problem arises out of the so-called fourth branch of government, the administrative agencies. Many administrative agencies exercise legislative, executive, and judicial powers, and there have been difficulties incorporating them into a rigorous scheme of separation of powers.

TASK VIII. Read the text to describe Madison’s concerns about the new Constitution:

For Madison the immediate and pressing question was whether the newly proposed Constitution would indeed make for safe government. There were, he confessed to Jefferson (no. 22), reasons to fault the plan. Though it represented an advance over the Articles of Confederation – "a Confederacy of independent States" – it still was not more than "a feudal system of republics." As such it was not adequate to secure the federal government against the encroachments of the states nor "to prevent instability and injustice in the legislation of the States." The remedy for Madison lay in a congressional power to veto state laws, a proposal he had steadfastly fought for in the Philadelphia Convention but to no avail. "It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority." Madison found the answer to that question in the very extent of the republic: its sheer size and heterogeneity made possible the benign application of that "reprobated axiom of tyranny," divide and rule. But if a large republic made it difficult for "oppressive combinations" to form, so too did it make it difficult for "a defensive concert" against administrative tyranny. Here the Constitution ought to be scrutinized to see whether the government it established has "sufficiently controlled itself, from setting up an interest adverse to that of the entire Society." Further detailed evidence of what Madison took to be the ingredients of a sufficiently controlled government may be gathered from his close critique of Jefferson's draft of a constitution for Virginia, observations written for the would-be founding fathers of Kentucky (no. 25).

TASK IX. Provide your arguments to agree or disagree with former Supreme Court Justice Thurgood Marshall: