SOME ASPECTS OF SEPARATION OF POWERS (FROM SOUTH CENTRAL REGIONAL CONFERENCE ON THE JUDICIARY - FINAL REPORT, JANUARY 21 AND 22, 1977 - SEE NCJ-47958)

• NCJ Number: 47961
• Author(s): E H LEVI
• Date Published: 1977
• Length: 21 pages
• Corporate Author: New Mexico Administrative Office of the Courts; National Ctr for State Courts; New Mexico Supreme Court
• Publication Format: Document
• Publication Type: Historical Overview
• Language: English
• Country: United States of America
• Note: REPRINTED FROM COLUMBIA LAW REVIEW, V 76, N 3 (APRIL 1976), P 371-391 BASED ON A SPEECH PRESENTED FOR THE FOURTH SULZBACHER MEMORIAL LECTURE AT COLUMBIA LAW SCHOOL

Annotation

THE HISTORICAL EVOLUTION OF THE DOCTRINE OF SEPARATION OF POWERS IS TRACED, ITS ACTUAL APPLICATION DURING THE FIRST 200 YEARS OF THE UNITED STATES HISTORY IS EXAMINED, AND QUESTIONS RAISED DURING THE 1970'S ARE CONSIDERED.

Abstract

POLITICAL THEORIES WHICH WERE COMMON IN AMERICA AT THE TIME OF THE CONSTITUTIONAL CONVENTION ARE EXAMINED AND THE INFLUENCE OF MONTESQUIEU, WHO ESPOUSED THE IDEA OF SEPARATION OF POWERS, IS DESCRIBED. TO IDENTIFY THE ORIGINAL INTENT OF THE CONSTITUTION, THE WRITINGS OF THE MEN WHO HELPED TO DRAFT THE DOCUMENT ARE EXAMINED. THE ASCENDENCY, FIRST, OF THE POWER OF THE LEGISLATIVE BRANCH, THEN, OF THE EXECUTIVE BRANCH IS TRACED THROUGH THE 19TH CENTURY. BY THE END OF THE 19TH CENTURY AND THROUGHOUT THE EARLIEST PART OF THE 20TH CENTURY, THE IDEA THAT THE LEGISLATURE WAS THE BEST EXPRESSION OF THE PEOPLE'S WILL WAS HELD FIRMLY. THE RISE OF EXECUTIVE POWER IN THE MID-20TH CENTURY IS TRACED AND THE ROLE OF THE U.S. SUPREME COURT IN UPHOLDING THIS EXECUTIVE POWER IS EXAMINED. THE CURRENT QUESTIONS FACING THE U.S. SUPREME COURT AS THE RESULT OF DEMANDS OF ONE BRANCH OF GOVERNMENT FOR INFORMATION FROM THE HANDS OF ANOTHER ARE THEN EXAMINED IN DETAIL. THE SUPREME COURT HAS BEEN ASKED TO DECIDE HOW MUCH INFORMATION A PRIVATE CITIZEN CAN OBTAIN FROM THE EXECUTIVE BRANCH, HOW MUCH INFORMATION THE LEGISLATIVE BRANCH CAN OBTAIN FROM THE EXECUTIVE BRANCH, AND HOW MUCH RIGHT THE EXECUTIVE BRANCH HAS TO WITHHOLD INFORMATION. MANY OF THESE RIGHTS OF THE EXECUTIVE BRANCH DERIVE FROM STATUTES PASSED BY THE LEGISLATIVE BRANCH. THE CONFUSION AND CONTROVERSY FACING THE COURTS IS EXAMINED AND THE PROPER ROLE OF THE COURTS IS DISCUSSED. IT IS POINTED OUT THAT THE FRAMERS OF THE CONSTITUTION NEVER EXPECTED THE THREE BRANCHES OF GOVERNMENT TO DEVELOP AN ADVERSARY RELATIONSHIP. THE CURRENT ADVERSARY CONDITION SHOWS THE WISDOM OF SEPARATION OF POWERS. FOOTNOTES CONTAIN EXTENSIVE REFERENCES AND CASE CITATIONS. (GLR)