Document Type

Working Paper

Publication Date

10-11-2012

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; Law School Research Papers - Public Law & Legal Theory; Cognitive Science Network; Political Institutions eJournals; Political Science Network

Abstract

The Constitution of 1787 establishes a strict system of separated and divided powers Congress is divided into two separately elected chambers and members of the legislative branch may not hold offices in either the executive or judicial branches of the federal government Despite the prominence of the US presidential model it has not proven as influential in the wider world as have other US innovations in constitutional design for example entrenched human rights safeguarded through independent courts vested with the power of judicial review In fact most liberal democracies including the many new governments established in the aftermath of World War II and after the fall of the Soviet Union in the late 1980s and early 1990s have rejected the presidential model in favor a parliamentary system that features a balance rather than a separation of powers between the three branches of government In particular parliamentary systems do not observe any separation of legislative and executive power the same persons hold and exercise both legislative and executive powers In part this choice reflects the lessons of history most presidential systems have failed when divided government gave rise to a constitutional crisis Thus although a matter of pressing concern and central importance to the Framers of the US Constitution separating and dividing legislative and executive power tends to lack salience in most modern constitutional democracies This essay considers some of the root causes of this US fixation with separating and dividing legislative and executive power and posits a pervasive distrust of government its institutions and its incumbent officers as a primary reason for the US embrace of presidentialism despite its obvious and significant downside with respect to the efficiency of government In the United States we embrace inefficiency as the guardian of liberty From a global perspective however efficient government is not necessarily the enemy of liberty"“and inefficiency constitutes not a virtue but a vice in constitutional design

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