Perhaps the most interesting facet of the doctrine according to which acceptable democracies require careful separation of the Executive, Legislative, and Judicial powers is that it seems to be almost entirely a prudential/empirical matter. That is, I doubt there is any fundamental axiom of democracy that requires that law making, law administering, and law interpreting be performed by strictly separate entities with a government. Thinkers like Montesquieu and Locke sometimes wrote as if there was some intrinsic connection between liberty and separation of powers, but I don't think they meant to suggest that this would be so in "an ideal world." So, while those in the current Adminstration in Washington, D.C. who push for something called a "unitary executive" often attempt to base their claims on some sort of strict separation thesis, it seems to me that their main impetus is just to obtain as much unbridled power for the executive branch as possible. It should be admitted, however, that there is at least some road from a demand for increased democracy to a resting place at which the (unelected) Federal judiciary has less power than it has exercised since the Warren Court--and (elected) legislative or executive officials have more power. On the other hand, no usurpation of power from Congress by the Executive can be defended on those grounds, and probably most of the unitary executive arrows currently flying around the Beltway have been thus far aimed at the legislative branch. (And that is hardly surprising since the current SCOTUS has a solid Trumpian majority.)
The main point I wish to make here, however, is that the extent and impregnability of the "wall" by which governmental powers ought to be divided is not a matter that can be sussed out apriori. Rather, it's the sort of thing that should be based on experience. James Madison famously warned in Federalist #51 that "A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
I don't myself know whether, if men were angels, no government would be called for, but I agree with Madison that as individual human beings are often nasty and power-hungry, such internal controls over government operations as the division of the most basic operations of government into three distinct parts is sensible. Now, if no governmental junto in one section of government were ever likely to try to usurp the power of all the other branches, no such separation would be required. But alas....
Unfortunately, as Paine explained in his Common Sense, separation of powers, no matter how strict, cannot do the trick in the real world. He wrote, "[T]he greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and though the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual."
Paine also seems to me to be right. That is, because men are not angels, it makes sense to separate govenment into branches as Madison suggested, but that won't take care of the problem either, because from time to time one branch is quite likely to attempt to overpower the others (as is currently happening in the U.S. under Trump), and success in such endeavors remains not just possible but a real danger.
What should be done then? I think the answer is quite clear: if, ultimately, governmental power comes from those who are governed, (something on which every one of the observers mentioned above all agree), it is absolutely essential that every good democracy contain unremovable Constitutional provisions for both Recall (the ability of the electorate to remove any governmental office-holder by a relatively quick vote) and Referendum (the ability of the electorate to repeal any law or regulation by vote). No good constitution can lack either of them.*
Of course, we don't have any such provisions in the U.S. Constitution. That makes it a poor excuse for a democracy-protecting document. Instead of worshiping that old and creaky fundamental law of the country, it needs to be fixed or replaced. And because, unlike Recall and Referendum provisions, no separation doctrine can be discovered a priori, such provisions should not be reckoned among those Constitutional enactments that may not be changed as experience recommends.#
Readers may complain that I have not answered the question posed by the title of this blog entry. They are right: My only suggestion is that we follow the advice of Madison, Paine, the early 20th Century Progressives who pushed for Recall and Referendum, and those who are currently involved in the empirical study of what works in this area among the community of comparative political scientists.
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*Reversal (the ability of the electorate to overturn certain types of judicial decisions by vote) may also be required, but I think it is quite difficult to get that one right without endangering Judicial independence, which seems to me necessary any authentic rule of law. [My democracy book contains a substantial discussion of the difficulty in getting Reversal right.]
# The matter of the various types of amendability that good Constitutions should accomodate is also discussed at some length in my book.
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