Separation of Powers Metatheory

Abstract

Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution — a major contribution to theorizing on the separation of powers — provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory — predicates that can be usefully grouped under the rubric of ‘separation of powers metatheory.’ Unlike much other work in the field, Congress’s Constitution directly identifies and addresses the three important key metatheoretical questions in play when the separation of powers is theorized. This review analyzes how it grapples with those profound challenges, and tries to articulate a descriptively fit and normatively compelling account of our federal government. Considering Congress’s Constitution from this perspective offers a valuable opportunity for considering the state and direction of academic theorizing on the separation of powers more broadly.