Separating Power: Essays on the Founding Period

The separation of powers along functional lines--legislative, executive, and judicial--has been a core concept of American constitutionalism ever since the Revolution. As noted constitutional law scholar Gerhard Casper points out in this collection of essays, barren assertions of the importance of keeping the powers separate do not capture the complexity of the task when it is seen as separating power flowing from a single source--the people. Popular sovereignty did not underlie earlier versions of the separation of powers doctrine. Casper vividly illustrates some of the challenges faced by Washington, Adams, Hamilton, Madison, Gallatin, Jefferson, and many others in Congress and the executive branch as they guided the young nation, setting precedents for future generations. He discusses areas such as congressional-executive relations, foreign affairs, appropriations, and the Judiciary Act of 1789 from the separation of powers vantage point. The picture of our government's formative years that emerges here, of a rich and overlapping understanding of responsibilities and authority, runs counter to rigid, syllogistic views. Separating Power gives us a clear portrait of the issues of separation of power in the founding period, as well as suggesting that in modern times we should be reluctant to tie separation of powers notions to their own procrustean bed.

Table of Contents:
Part 1 The task of separating power: introduction; the separation of powers doctrine during the period of constitution-making; the separation of powers in state constitutions; the transition from the articles of confederation to the federal constitution. Part 2 The conduct of government during the Washington administration: communications between the executive and legislative branches; establishment of the departments of government; the conduct of foreign relations - the Algiers problem' 'A more effectual mode of administering'. Part 3 Appropriations of power: historical roots in English Appropriations law; fiscal constitutions; the first Appropriations bills; the heroic in the mundane. Part 4 Jefferson's "Shackles of power": Jefferson's changing roles - the challenge of consistency; the federal city as a symbol of the separation of powers; Jefferson's first annual message - a change in convention; the war power - the conflict at Tripoli; the spending power - specificity and deficiency of appropriations; the Louisiana purchase. Part 5 The Judiciary Act of 1789 and judicial independence: the judiciary in France, England, and the United States; the challenge of an independent judiciary; the Judiciary Act's limitations on judicial power.

About the Author :
Gerhard Casper is President of the American Academy in Berlin and President Emeritus of Stanford University.

Review :
Many constitutional scholars believe that if they could only pierce the fog created by the Constitution's wonderful obscurity and our own historical distance, the thoughts of men like Jefferson and Madison could help resolve current political controversies. But in Separating Power, Gerhard Casper advances the unsettling opinion that we must face questions about the separation of powers without the Founding Fathers' help: they cannot guide us because they themselves were hopelessly confused...[The Founding Fathers] sought to cooperate rather than to engage in jealous turf battles. So even if they left us with no cohesive separation-of-powers doctrine, as this fine book makes clear, perhaps the Founding Fathers' spirit of compromise could teach us how we should approach our own political problems. Mr. Casper reexamines the question of constitutional rigidity. He concludes, and provides powerful historical evidence supporting his point, that there is, in fact, a great deal of flexibility within checks and balances. In Separating Power, Gerhard Casper gives a brief, brisk but authoritative account of the origins of what we now take for granted as a principle of American society: the separation of the executive, legislative and judicial branches of government...What makes Separating Power so refreshing is Casper's insistence on the sheer newness of the problem in 1789. Throughout the five linked essays that make up the book, he keeps reminding us that everything the Washington administration did was being done for the first time...It is certainly bracing to revisit, via Casper's lucid scholarship, these superb politicians at work, inventing the government we now feel compelled to reinvent. Originalists taught that constitutional law must return to founding understandings as a guide to current interpretive questions about the meaning and scope of the constitution. What they didn't teach was how little such an inquiry would yield. Casper's beautiful and rich account of founding ideas about separating powers reveals just how little the framers had finally worked out, and how much our modern understanding differs from what they did work out. This book, in its simple and elegant directness, is a compelling account of the struggles and complexity that confronted the founding generation as they erected a constituting regime of separated powers. It will undermine arguments that imagine that the framers gave us a structure already worked out. If one thought constitutional law should be about returning to the answers the framers left us, this book shows unavoidably that there were few answers, if any, that the framers meant to leave.