The separation of powers along functional lines--legislative,
executive, and judicial--has been a core concept of American
constitutionalism ever since the Revolution. As noted
constitutional law scholar Gerhard Casper points out in this
collection of essays, barren assertions of the importance of
keeping the powers separate do not capture the complexity of the
task when it is seen as separating power flowing from a single
source--the people. Popular sovereignty did not underlie earlier
versions of the separation of powers doctrine.
Casper vividly illustrates some of the challenges faced by
Washington, Adams, Hamilton, Madison, Gallatin, Jefferson, and many
others in Congress and the executive branch as they guided the
young nation, setting precedents for future generations. He
discusses areas such as congressional-executive relations, foreign
affairs, appropriations, and the Judiciary Act of 1789 from the
separation of powers vantage point.
The picture of our government's formative years that emerges
here, of a rich and overlapping understanding of responsibilities
and authority, runs counter to rigid, syllogistic views.
"Separating Power" gives us a clear portrait of the issues of
separation of power in the founding period, as well as suggesting
that in modern times we should be reluctant to tie separation of
powers notions to their own procrustean bed.
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