The Principle of the Separation of Powers: the Ontological Presumption of an Ideologeme

The theoretical materiality of the principle of the separation of powers is beyond doubt. This principle is inevitable in discourse on the constitutional framework of the state, democracy and the rule of law, and it has its own form of expression in positive law. Although the relevance of the principle of the separation of powers in social discourse creates the illusion of the conceivability of its content, the ontological questions concerning this principle remain largely vague. This can be explained by considering two aspects. First, as established in scientific doctrines and constitutional forms of expression, the principle of the separation of powers has become a social and legal ideologeme; it approximates an axiom which is no longer substantiated anew. Second, discourse concerning ontology is always complicated, since it calls to question the essence itself. It is complicated not only because it requires a particular intellectual effort and academic courage, but also because the outcome of such discourse is unpredictable and can lead either to the ideologeme being confirmed to be true or being unexpectedly revised, or perhaps can even lead to the demise of what has so far been self-evident, unquestionable, obvious, universally known, etc. This article analyses the ontological essence of the principle of the separation of powers – an approach towards the human being, whereby meaning is given to the consequent system of causal relationships within the whole theory. Discourse in this article takes ontological issues as its object of inquiry: why did we decide to separate powers and how many of these separated powers are there?

Porous Bureaucracy: Legitimating the Administrative State in Taiwan

Scholars and politicians have sometimes presented bureaucracy as inherently conflicting with democracy. But bureaucrats themselves are rarely consulted about that relationship. In contrast, I draw on interviews and participant observation to illuminate how government administrators understand their own place in the government of Taiwan, one of the few successful third wave democracies. The administrators I work with root their own legitimacy not in separated powers or autonomous expertise, but in their ongoing collaboration with legislators and publics. They define their own accountability not just as executing legislative mandates but as producing them in the first place, and they figure bureaucracy as a key site for political participation. I put these views into historical context to elucidate how bureaucracy can compete for democratic bona fides with common democratic indicators like constitutions and elections. This article contributes to scholarship on the ethnography of bureaucracy, administrative accountability networks, and the internal law of administration. In particular, I stress the importance of administrative culture as a central aspect of political legitimation.

Congress and the Courts

This chapter turns to the relationship between the legislative and judiciary branches. It shows that in contemporary America, the judiciary has formed a de facto “union” with the executive and has in some respects helped to diminish the role of Congress in the American governmental system. This was not always the case, however, as the constitutional system of checks and balances assigns Congress a good deal of power over the judiciary. When they created the Constitution's system of separated powers and checks and balances, the framers had regarded the Congress as the branch most likely to seek to expand its power and the judiciary as the “least dangerous branch.” Since then, however, Americans have come to accept the idea that the federal courts can declare acts of Congress to be inconsistent with the Constitution and, therefore, null and void.

Stewardship in Large Public Projects: The Practicality of Shakespeare

Can reading great literature, considering its heroes and small characters, improve the performance of public sector actors? King Lear’s characters fault a wickedly disinterested heaven for life’s setbacks and woes. Yet Shakespeare makes clear that these actors’ own terrible choices beset the king, his family and the rest of us who are subject to the acts of public leaders. Reading this literature as analogy for the effectiveness of the modern public sector suggests how administrative operation of our democratic state may – or may not – successfully parcel power and control so as to limit negative externalities derived from ill-informed, self-serving or rent-seeking executive and individual decisions. Lear’s tragic arc mimics a sorrowful “muddling through” and potentially unnecessary “satisficing” in certain large public works projects. One large public project currently deemed successful is examined here – the replacement of the eastern span of the Bay Bridge in San Francisco – as a reflection on separated powers, the limits of human nature, and the inevitability of error.

The Supreme Court Decision Making Process

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

The (Long) Administrative Century

This chapter discusses the emergence of regulatory governance from the Progressive movement. The Progressives laid the groundwork for an entirely new “branch” of the federal government by thinking comprehensively about how regulatory authority should be structured. These reformers created an enduring model for federal management of the marketplace: independent commissions and relatively independent executive agencies given quasi-legislative, quasi-executive, and quasi-judicial authority (that is, all the powers that the Constitution intentionally kept separate). Thus, the Progressive legacy can be traced not just to the growth of the administrative state but also to this ongoing determination to prove that agency governance can be reconciled with constitutionally separated powers. Without any firm resolution of this tension, twentieth-century governance was marked by these two systems of governance often working at cross-purposes, each compromising the integrity of the other.

Did Hamilton, Jefferson, and Madison “Cause” the U.S. Government Shutdown? The Institutional Path from an Eighteenth Century Republic to a Twenty-first Century Democracy

This address asks how we got to today’s politics in America; a politics of polarized political parties engaged in close political competition in a system of checks and balances. The result has often been divided control of government and an apparent inability to address major political problems. This address develops the historical foundation for these characteristics. Historically, the Founding period set the stage of separated powers and the first party system. America developed a market economy, a middle class, and a mass-based set of parties in the Antebellum period. Through the Progressive era, nation-wide reforms led to a more democratic but increasingly candidate-centered politics in the North, and the establishment of Jim Crow politics in the South. The post-War period saw the full development of candidate-centered elections. While the breakup of Jim Crow due to the Civil Rights and Voting Rights Acts in the mid-1960s ended Jim Crow and made possible a competitive party system in the South, the later was delayed until the full implementation of the Republican’s “southern strategy” in 1980 and beyond. This set in motion the partisan polarization of today, to combine with separated powers to create what many refer to as the “current” political “dysfunction.”