Separation of Powers: Interpretation Outside the Courts

Abstract

Law reviews carry hundreds of articles that examine with micro­ scopic precision the various judicial rulings on separation of powers. The net result is a mixture of inconsistent and incoherent theories, ranging from functional and pragmatic approaches to those that at­ tempt a doctrinaire and purist formulation. The conscientious (and weary) reader of these rulings and articles is left with vague notions of what the framers intended and what is legally required for con­ temporary times. How does the federal government function in the face of this doc·· trinal confusion? The answer is that government does fairly well, thank you, because most of the principal disputes involving separa­ tion of powers are resolved outside the courts. The majority of these collisions never reach the courts or, if they do, are quickly pushed back to the executive and legislative branches for nonjudicial treat­ ment. These accommodations and informal agreements are crucial in understanding separation of powers, but law reviews provide scant attention on the ground that the resolutions are "political" rather than "constitutional" interpretations. In fact, they are both, and the student of separation of powers should be sensitive to the complex and delicate arrangements that are fashioned regularly outside the courtroom. •