Document Type

Working Paper

Publication Date

10-15-2008

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Administrative Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

The US Constitution and the US iteration of constitutionalism have been highly influential in the rest of the world A written constitution federalism judicial review and a written bill of rights are common characteristics of many constitutions adopted since World War II In one key respect however the US model has not found many takers separation of executive and legislative powers The United States maintains a strong separation of legislative and executive powers a state of affairs that is very unusual at least when viewed from the perspective of most of Europe Canada and a good number of other democracies elsewhere eg Israel South Africa Australia New Zealand The Constitution itself and the Framers clearly feared that combining executive and legislative powers would be conducive to tyranny and should accordingly not be permitted The essay posits that the US concern with separating and dividing executive and legislative power stems from a more generalized skepticism toward government and government institutions than exists in most other democracies The essay also suggests that notwithstanding the obvious downside of making government action more difficult by requiring the separate concurrence of the President or a supermajority of the Congress this arrangement provides an important structural benefit by facilitating a separate political review of legislative policies Judicial review is an important and useful way of securing constitutional government executive review of legislative policies which may be more wideranging than judicial review also helps to secure good governance

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