separation of powers in thought and practice? - Boston College

2013] Separation of Powers in Thought and Practice? 439
principle of the legal constitution.21 The Bicameralism and Federalism
Principles, by contrast, are evidently principles of the U.S. Constitution,
and the Checks and Balances Principle is an umbrella term for a number
of principles such as the presidential veto, the Senate’s “advise-andconsent
role” in a number of areas, and the principle of judicial review
of legislation.22
It is common, in essays of this kind, to go on to excoriate judges
and colleagues for “confusing” these principles with one another, and
for using the language of separation of powers loosely and inaccurately.23
No doubt M.J.C. Vile is right to say that the separation of powers
“represents an area of political thought in which there has been an extraordinary
confusion in the definition and use of terms.”24 But it is
futile for the analytic philosopher to go on pedantically in those tones.
People use a phrase as they use it. All I want to say is that the separation
of executive, judicial, and legislative functions from one another has
some importance in our constitutional theory even apart from—or
over and above—the importance of observing any of the other principles
I have mentioned. What matters to me is that we isolate and understand
that importance. We can then choose to use the phrase “separation
of powers” as we like, maybe as though it represented a
conglomeration of the considerations that pertain to the first three
principles on my list, and maybe the last two as well. But at least we will
now have some grasp on a particular set of considerations that really
21 True, the Constitution does divide power in particular ways; but the Division of
Power Principle presents it as a wholesale matter and embodies a general theory about why
this is important that the Constitution does not necessarily embrace.
22 It is possible that we should say about some instances of the Checks and Balances
Principle what I said about the Division of Power Principle. To identify, say, the Senate’s
role in ratifying treaties as a matter of checks and balances is to subscribe to a particular
theory about why the Senate was given that power, and that theory might or might not be
correct. That might not be thought correct, for example, by one who believed—as James
Madison asserts in Helvidius No. 1—that the Senate has this role simply because treatymaking
is a form of law-making. See Madison, supra note 18, at 59.
23 See, e.g., Vile, supra note 9, at 2 (“The doctrine of separation of powers . . . [has] been
combined with other political ideas, the theory of mixed government, the idea of balance,
the concept of checks and balances, to form the complex constitutional theories that provided
the basis for an effective, stable political system.”); Edward L. Rubin & Malcolm Feeley,
Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 907–09 (1994) (stating that
federalism, “once properly defined, does not secure citizen participation, does not make
government more responsive or efficient by creating competition, and does not encourage
experimentation,” and that the U.S. Supreme Court “can proclaim the virtues of federalism
with a straight face only because it does not know what federalism is”).
24 Vile, supra note 9, at 2.