The Separation of Powers in United States of America: Past and Present

Abstract

The American version of the separation of powers was designed to prevent tyranny (i.e., capricious, arbitrary rule) and to ensure the rule of law by preventing the concentration of all powers in any one branch.  That legislators, as well as their family and friends, would be subject to the impartial administration and adjudication of laws which they passed was a key factor in assuring these objectives.  While Congress was regarded as the most representative and powerful branch in the system, over the course of American history presidential powers have increased enormously, often at the expense of Congress.  The emergence and growth of political parties has facilitated this development so that today the presidency is the predominant branch of government, viewed as representing all the people, not special or narrow interests.  In recent years, a new and expansive theory of presidential authority, “the unitary executive theory,” has gained currency; a theory which justifies an even greater concentration of authority in the executive branch.  Moreover, the Supreme Court in recent decades, largely through an expansive interpretation of both its function and the language of  the Constitution, has assumed new power, again at the expense of Congress.  While the Constitution has not been amended to alter the original design, the reality is that the present system does not correspond to that intended by the Framers.  Yet, the concerns posed by the Framers about a concentration of power remain.

Fecha de envío: 18/10/2008

Fecha de admisión: 21/12/2008