This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.
Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of “formalist” or “functionalist” methodologies. A closer look at that debate, however, reveals that the description is mistaken; it disguises a robust consensus about separation of powers that one finds at the base of every approach to separation of powers – formalist and functionalist alike. That consensus is civics-class familiar: it calls for dispersal of three government functions among three separate government institutions and equipping each institution with select powers to protect itself and police the other departments.
Having exposed the consensus, this Article critically examines it. The consensus simultaneously embraces two different substantive conceptions that are assumed to, but do not, fit easily together. One conception, called here “separation-of-functions,” stresses the need to keep the three government powers in different departments; the other conception, called here “balance-of-power,” stresses the need to balance the departments of government through the creation and maintenance of tension and competition among them. The two conceptions are conflated or treated as if they easily relate to one another. Muddling the two conceptions together, however, is a mistake because they are distinct and in some ways in tension. Identifying a connection between the two ideas proves fruitless. The consensus, for instance, suggests that separating government functions leads to balance-of-power, but that connection does not hold up to close examination. And treating separation-of-functions as a way of achieving balance-of-power does more than fail; it ignores the independent reasons – reasons unrelated to balance-of-power – one might wish to separate government functions. Finally, the two conceptions suggest different, often irreconcilable, doctrinal concerns.
The lesson of this Article, then, is that the consensus must be abandoned in favor of a new set of ideas about separation of powers. The Article takes the first step toward a new consensus by extracting the two distinct and sometimes conflicting conceptions from the muddle of the present consensus. While the latter steps of constructing a new consensus are not completed here, the challenges of those steps are clarified by this effort.