Theme Reflections

Below are reflections on the 2018 theme from prominent figures in law and government.

 

 

"The Price of Liberty. In 1809, author Thomas Charlton wrote that “the price of liberty is eternal vigilance.” Variations of that quote have appeared often in American letters, usually in the context of how we need to be vigilant against our foreign enemies. But, to me, the biggest threat to liberty is not from other countries, but from Americans within the country who conspire to undermine the principles of the U.S. Constitution under the guise of flag-waving patriotism. They follow the belief that the means justify the ends, even if the means degrade what the country stands for. Never in modern history have we been witness to a greater threat to our democratic government than we are seeing today through the body blows delivered by the various unscrupulous politicians. From racism, misogyny, gerrymandering, attempts to restrict minority voters, direct lying to the people, advocating specific religions by the state, and other means, they gnaw through the moral imperative of our values like rats through a power line. Democracy’s main defense against these vermin is the separation of powers that provide enough roadblocks of scrutiny for us to uncover these un-American agendas. But they don’t operate in a social vacuum. We, the people, must apply political pressure to each of those bodies to ensure that they do their jobs in remaining eternally vigilant in defense of our liberty."
 

Kareem Abdul-Jabbar
 

Author, Commentator, Activist, and Basketball Great

 

 

 

 

 

"There is no doubt that the Framers of the U.S. Constitution created a new and unique framework for the preservation of liberty by separating powers across two axes: among the legislative, executive, and judicial branches and between the federal and state levels of government. But we in the twenty-first century should not forget that Madison, Hamilton, Wilson and their common law-trained brethren understood federalism and the separation of powers differently from us today. The difference arises from the Framers’ acceptance of flexibility: they created and implemented their new federal government by studying the states’ experimentation with constitution making (which included some configurations for separating power that are contradictory to our norms today), as well as the fluidity of England’s king-centric, common-law constitution. Over time, America worked out a more rigid set of rules and norms that checks, balances, and insulates each branch from encroachment, and that constitutionalizes the reach of the federal government’s authority. These rules give us a sense of certainty—it’s a system that has worked—but what was lost when time-tested rigidity replaced experimental flexibility and contingency? Recapturing the possibilities inherent in the Framers’ common-law tradition might further enhance the freedoms they intended to preserve through a more fluid framework for separating power."
 

Kate Elizabeth Brown
 

Assistant Professor of History and Political Science, Huntington University

 

 

 

 

 

"Nothing better illustrates both the wisdom of the Founders and a disastrous blind spot in their thinking than their reliance on a system of separated powers as a protection against de facto monarchy. The wisdom came in both the division of authority and in placing the greater part of the nation’s decision-making powers – over taxing, spending, and war -- in the hands of the branch most directly controlled by the citizenry. Dividing the powers of government is the essential feature of any system that places a premium on liberty. The blind spot was in their reliance on members of the dominant branch – Congress – to jealously guard the prerogatives of their uniquely powerful institution. The rise of hyper-partisanship (they warned against creating political parties, but here we are) has made members of Congress allies and defenders of the executive rather than a check on executive power. Frameworks are important and the one the Founders left us was first-rate. But as always, it’s what’s inside the frame that matters most. Increasingly, what’s inside today’s frame is not a jealously independent Congress, asserting its equal standing, but a gaggle of presidential acolytes. That, more than any single chief executive, no matter how despotic, is liberty’s greatest threat."
 

Mickey Edwards
 

Vice President, The Aspen Institute and Former U.S. Representative (Oklahoma-5)

 

 

 

 

 

"Separation of Powers and Military Actions. The Framers rejected the British model of John Locke and William Blackstone that gave all of external affairs to the executive, including the war power. Instead, they recognized that the President could repel sudden attacks, but that only Congress could take the country to war. In Federalist No. 4, John Jay warned that absolute monarchs will “often engage in wars not sanctified by justice or the voice and interests of his people.” That constitutional model has been regularly violated by presidents after World War II, including Truman’s military actions against North Korea in 1950; Clinton’s use of force against Haiti, Bosnia, and Kosovo; and Obama’s support for regime change against Libya in 2011. Instead of seeking authority from Congress, in each case they sought support from the U.N. Security Council and NATO allies. It is claimed by some that a U.N. resolution complies with international law. Whatever the merits of that argument, it does not comply with the U.S. Constitution. The Senate, acting through the treaty power for the U.N. and NATO, cannot transfer the Article I authority of Congress to international and regional organizations."
 

Louis Fisher
 

Scholar in Residence, The Constitution Project and Former Senior Specialist in Separation of Powers, Congressional Research Service

 

 


 

 

 

"The idea of stripping legislative and judicial functions from the monarch did not originate in America, but our Founders, in framing “a more perfect union,” enhanced that concept. They ensconced separation of powers into a written constitution by giving distinct and overlapping responsibilities to three branches of government—legislative, executive, and judicial. The genius of this interwoven structure gave each branch checks on the exercise of power of the others. If Congress enacts a law that violates individual freedoms guaranteed under the Constitution, the judiciary has the power to declare it invalid and unenforceable. Thus, any law that encroaches upon individual liberties, no matter how overwhelming the majority favoring its passage, must dissolve. If the president violates the freedoms of the people, the judiciary can declare the act invalid and unenforceable. Thus, any executive act that trespasses on protected freedoms, no matter how popular the president, must desist. If judicial officers abdicate their duty to administer justice in protecting the freedoms of the people, they are subject to removal by impeachment proceedings in Congress. Separation of powers is the cornerstone of “ordered liberty” because it protects our personal freedoms and rights from the whim of the executive, will of the judiciary, and wile of the majority."
 

Roger Gregory
 

Chief Judge, United States Court of Appeals for the Fourth Circuit

 

 

 

 

 

"The idea of separated powers conjures two related notions, which in practice stand in some tension with each other. On the one hand, the term connotes the separation of the three governmental powers in a way that promotes clear accountability for government action. On the other hand, it is also invoked to connote interaction between distinct institutions that have the beneficial effect of increasing liberty. The problem is that there’s no reason to think these sentences are true. The Constitution does not draw clean lines separating the branches. Since officials more often have partisan than institutional motives, there is no reason to think that the branches will behave in practice as separate, adverse institutions. Even if they did, the relationship between interbranch checks and the promotion of liberty is uncertain in practice. The Japanese internment, for example, was blessed by all three branches, whereas President Roosevelt’s decision to aid allies against the Nazis was a unilateral one. Constitutional theories are thus of limited use. It would be better to look hard at how our institutions behave in particular cases, and reach judgments based on the particular outcomes we observe on the ground."
 

Aziz Huq


Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School

 

 

 

 

 

"The essential logic undergirding the separation of powers doctrine is set forth by Alexander Hamilton in Federalist No. 71: “The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation [would] make it very difficult for the other members of the government to maintain the balance of the Constitution.” The brilliance and durability of our Constitution is perhaps best manifested by the fact that it has inspired application of the concepts of rule of law, separation of powers, and individual rights in virtually every modern democracy in the world. I applaud the ABA for keeping these precepts, which form the basis of our freedoms, front and center on Law Day 2018."
 

H. Alexander Manuel
 

Administrative Judge, U.S. Department of Housing and Urban Development

 

 

 

 

 

 

 

 

"In his most celebrated dissent in Morrison v. Olson (1988), Justice Antonin G. Scalia wrote, “without a secure structure of separated powers, our Bill of Rights would be worthless.” In the American Hall of Shame, leaders in Congress, the President, and the Supreme Court all have at times trampled upon our constitutional structure, to dreadful effect. In 1798, Congress passed the Alien and Sedition Acts to unlawfully suppress political opposition. With the principle of judicial review still five years away (Marbury v. Madison), the Federalists in Congress flagrantly subjugated dissenting citizens, politicians, and press. In 1832, President Andrew Jackson disregarded the Supreme Court’s decision in Worcester v. Georgia, which upheld the sovereignty of the Cherokee nation against the state of Georgia. Nonetheless, forced to relocate, five thousand Cherokees later died on the Trail of Tears, among other inhumane Native evictions. In 1857, Chief Justice Roger Taney delivered his disastrous decision in Dred Scott v. Sanford. Taney went far beyond the question presented, regarding Mr. Scott’s freedom, to assert that African Americans could never be citizens and that Congress was powerless to prohibit slavery throughout the United States. Fortunately, these tragic cases are rarities. The American experiment succeeds when each branch respects the others as well as the ultimate authority of the American people."
 

Rachel Paulose
 

Partner, DLA Piper and former United States Attorney for the District of Minnesota

 

 

 

 

"Our separation of powers is a bulwark against tyranny, but it has been undermined over the past century. The reason is simple: separation of powers is cumbersome, even if it secures freedom by preventing one-person rule. It requires law to be enacted by three separate bodies representing different constituencies: the House (representing districts), Senate (representing states), and president (representing the whole country). Then, law must be implemented by executive and judicial branches that are independent of the legislature that drafted it. Therefore, unlike the parliamentary systems of other democracies, our system responds slowly to public opinion, preventing temporary majorities from quickly changing laws. Dissatisfied with this cumbersome model, around a century ago we created institutions to circumvent the separation of powers: modern administrative agencies. Many agencies make rules with the force of law outside of Congress’s legislative process, which they then enforce and even adjudicate. Consequently, Americans pay much more attention to presidential elections and actions than those of Congress. They often refer to legislation as if the president enacted it (e.g., Obamacare). This threatens to turn our system into that of one-person rule. All of us, therefore, should work to re-establish this system of separation of powers and its checks on individual officeholders."
 

Joseph Postell
 

Associate Professor of Political Science, University of Colorado-Colorado Springs and Visiting Fellow with the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics

 

 

 

 

 

"The PoliSci 101story about the separation of powers is this: because power corrupts and absolute power corrupts absolutely, our Framers sliced national power horizontally into three equal parts and set them against one another to protect liberty while creating a vertical separation of powers between the national government and the states to protect “federalism.” It is a clean tale which nicely invokes Lord Acton’s justly famous aphorism about the tendency of absolute power to corrupt absolutely. The problem is Lord Acton wrote those words in 1887, a century after the Framers wrote the Constitution, a document that does not contain the words “separation of powers,” “checks and balances” or “federalism.” The conventional story is too pat. In truth, the Framers were determined to establish government by the people, which meant two essential things: (1) adopting a First Amendment to break up the merger of church and state, the two social powers that needed to be separated for democracy and freedom of mind to flourish, and (2) the vesting of all lawmaking power in the representatives of the people while politically refusing Kings and Queens and Titles of Nobility. The job of the president is solely to “take care” that the people’s laws are faithfully executed and the role of the judiciary is just to say what their laws mean. It is true that chopping power up in horizontal and vertical directions prevents the collapse of all powers into one, which Madison thought was the very definition of tyranny (Federalist No. 47). And It has been a saving grace of our system that when one branch is foreclosed to the people, there may be other institutional channels of refuge and change. But it is important to see that our separation of powers flows out of our overriding commitment to popular representative government and the primacy of the people’s branch, the Congress of the United States."
 

Jamin Raskin
 

U.S. Representative (Maryland-8) and Professor of Law, American University Washington College of Law

 

 

 

 

 

"Separation of powers does not provide a direct guarantee of liberty. It might provide an indirect guarantee, provided that one defines liberty in a narrow, right-wing reactionary manner that ignores the realities of modern society. The term might be taken to refer to the independence of the judiciary from the political branches, but this would be a minimal and relatively uninformative usage. Every democratic government, no matter what its structure, provides for judicial independence. More typically, and more usefully, it refers to the separation of the executive from the legislature, which, in a democratic context, translates into the difference between presidential and parliamentary systems. To assert that a presidential system guarantees liberty to a greater extent than a parliamentary one would constitute a rather egregious case of parochial ignorance. Many of the world’s leading democracies are parliamentary, and a number of these, including the United Kingdom, Canada, Sweden, and the Netherlands have substantially better human rights records than the United States. While separation of powers does not guarantee liberty directly, it does have the effect of making affirmative governmental action more difficult. In modern times, the general pattern of governmental action has been to regulate business firms and protect workers and consumers from the breakdown of traditional society and the rigors of industrialization. Thus, separation of powers provides indirect support for liberty if one sympathizes with corporations and the economic elite, and feels relatively little concern for the majority of citizens. If one sympathizes with that majority, however, separation of powers will generally be perceived as having the opposite effect."
 

Edward Rubin
 

University Professor of Law and Political Science, Vanderbilt University

 

 

 

 

 

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