Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

2 more significantly after independence was declared

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2 More significantly, after independence was declared, eleven of the thirteen states in their new constitutions sought to provide for the separation of powers. 3 In fact, in the constitutions of six of these states, the doctrine was declared to be an inviolable principle of free government. 4 The fact that these states had little success in maintaining the separation of powers called for in their constitutions did not diminish the deep and widespread regard the doctrine enjoyed. 5 The records of the deliberations at the Constitutional Convention reveal that there was never any question that the resulting constitution would embrace a division of functions between three relatively distinct departments of government. 6 The failures of the state governments only served to provide instructive lessons for the convention delegates on what additional provisions and precautions would be necessary for a viable and enduring government with divided powers. 1. See Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth Century Political Thought,” 78 American Political Science Review (1984). On Lutz’s showing, Montesquieu was the most widely cited political philosopher in the American founding period. His authority was invoked by both Anti-Federalists and Federalists during the ratification debates. See, for instance, Federalist essays nos 9 and 47. For an excellent treatment of the various versions of the separation of powers doctrine and its evolution in the English political tradition see: W.B. Gwyn, The Meaning of the Separation of Powers , vol. IX, Tulane Studies in Political Science (New Orleans: Tulane University, 1965). 2. For a splendid treatment of separation doctrine, its development and application in America, see M.J.C. Vile, Constitutionalism and the Separation of Powers , 2 nd ed. (Indianapolis: Liberty Fund, 1998), chpt. 6. 3. The two exceptions were the charter colonies, Connecticut and Rhode Island, which continued to operate under their original charters. 4. The most elaborate of these declarations was that in the Massachusetts Constitution of 1780. Article XXX in its “declaration of right” reads to the effect that no branch of government – legislative, executive, or judicial – shall exercise the power of another “to the end it may be a government of laws and not of men.” The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 , eds. Oscar and Mary Handlin (Cambridge: Harvard University Press, 1966), 327. 5. For an overview of the failings of the state governments established after the Declaration see Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (Chicago: University of Chicago Press, 1994). 6. Both major plans set before the Convention, the Virginia and Connecticut, incorporated the separation of powers, though in rudimentary form. Neither plan provided the “balance” that was to be found in the final product. See text below.
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