Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

Furthermore those constitutional provisions intended

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Furthermore, those constitutional provisions, intended to establish a “balanced Constitution,” are best understood as a means to maintain the constitutional separation of powers rather than, as the case in mixed regimes, to insure any balance of power between the major social interests or classes. This, at least, was Madison’s understanding that was also widely shared by members of the Constitutional Convention. III. POLITICAL DEVELOPMENTS AND CHANGING THEORETICAL PERSPECTIVES As intimidated above, this understanding of separation of powers and, in particular, the status and role of Congress, has changed markedly since the time of founding. The most far reaching aspect of this change is not attributable to modifications of the Constitution or to judicial interpretations relating to the respective powers of the Congress and president. Indeed, the Constitution in most important particulars relating the division of powers has not changed since its inception. If anything, save for certain provisions in the Bill of Rights, the first ten 31. Perhaps this point is best illustrated by looking at The Federalist and the attention devoted to each of the branches. The legislature is treated first in fifteen essays (52-36); ten devoted to the House of representatives, five to the Senate; the executive next in eleven essays (67-77); and the judiciary in six (78-83). 272
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amendments to the Constitution adopted shortly after ratification, at least two subsequent amendments would seem to increase congressional powers: the Fourteenth Amendment, which provides in section 5 that “Congress shall have power to enforce, by appropriate legislation, [its] provisions” that include guaranteeing individuals both “the equal protection of the laws” and protection against “any State” depriving “any person of life, liberty, or property, without due process of law”; 32 and the Sixteenth that confers upon Congress the “power to lay and collect taxes on incomes, form whatever source derived, with apportionment among the several States, and without regard to any census or enumeration.” 33 Despite this, however, political developments over the decades, as well as changing theoretical perspectives concerning constitutional interpretation have served to diminish the status of Congress relative to the other branches. This can best be seen by tracing the major factors that have led to an expansion of presidential and judicial powers often at the expense of Congress. 3.1. Changing Constitutional Perspectives and the Rise of the Presidency Two related developments within a few decades after ratification of the Constitution served as catalysts in altering the relationship between the branches, at least as this relationship was originally understood. The first of these was the emergence of organized political parties which, not entirely unlike the parties today, were rooted in the states but united in their determination to elect a president of their choice. From the perspective of the constitutional division of powers,
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