Blog of the International Journal of Constitutional Law

Making Government Work for the 99%? (And the 53%? And the 47%)?: Why we Need to Re-think the Separation in the Separation of Powers

Eoin Carolan, Lecturer in Law, University College Dublin

Has the separation of powers outlived its usefulness? After all, contemporary government bears little if any resemblance to the 18th century structures on which Montesquieu’s influential account of the separation of powers was modelled. Nor does government today mirror to a significant degree the adapted institutional arrangements sketched out by Madison, Hamilton and Jay in The Federalist Papers. And yet, the tripartite model of the separation of powers maintains its position as a totemic constitutional principle: earnestly described in high-school civics; reflexively endorsed in political rhetoric; ritualistically incanted by supreme and constitutional courts worldwide – but rarely applied with any serious rigour by courts or scholars addressing real-world institutional issues. Some might argue that such constitutional mythology is an issue of little practical consequence. What this piece wants to explore, however, is the question of whether the persistence of the principle could be having a damaging effect on democratic government.

The flaws in the tripartite model are manifold and well-known. Without re-stating arguments that have been made at greater and more nuanced length elsewhere, the main criticisms are that the model is hopelessly anachronistic and cripplingly indeterminate, describing a system of government which does not exist and which would be utterly incapable of functioning if it did.

One consequence of this has been that constitutional lawyers in various jurisdictions have developed practical work-arounds for the tripartite problem. Examples of this approach include, the development in Australian public law of the concept of a fourth ‘integrity’ branch of government, the use in American constitutional law of what Jackson J. described in his FTC v. Ruberoid dissent as the “mere retreat to the qualifying quasi”, and the Irish courts’ related and halting attempts to define what constitutes ‘the administration of justice’. These sticking plaster solutions allow constitutional lawyers to preserve the doctrinal status quo while muddling through the difficulties to which it gives rise. What they fail to address however is the proscriptive potential of the traditional model – how its very existence serves as an obstacle to the emergence of alternative conceptions of contemporary government.

It is this latter issue which this piece wants to examine. The purpose of this piece is not to defend or articulate a specific alternative. Nor does it discuss all of the many ways in which the trinitarian orthodoxy disfigures current constitutional doctrines. Rather, the focus is on the narrow but important issue of how the separation of powers has combined with a simplistic conception of democracy to undermine the legitimacy of modern government.

As the anniversary of the Occupy protests reminds us, there is a crisis of public trust in many of our democratic systems. Nor is this distrust confined to a single side of the political spectrum.  The Occupy and Tea Party movements exhibit a common anti-establishmentarian impulse, both animated by a perception that the political elites do not respect or represent their views. Even outside the realm of activist groups, ‘ordinary’ voters in many jurisdictions consistently express a desire for candidates from outside a professional political gene pool that is seen as remote and unrepresentative – a desire corroborated by the electoral success of comedians (Jon Gnarr in Iceland, Beppo Grillo in Italy), sports stars (various GAA players in Ireland, Jesse Ventura in Minnesota) or those politicians who carefully cultivate an unorthodox image (England’s current political darling Boris Johnson).

For those with a personal or professional interest in politics, there can be a tendency to dismiss these results as the consequence of a freakish combination of popular disenchantment, a charismatic personality, or a lack of seriousness amongst voters. The possibility is rarely considered, however, that the Huddersfield voters who preferred a monkey mascot to a professional politician as mayor might be right – that our elected institutions are made up of a like-minded elite and that our democratic structures have become increasingly unrepresentative.

From an institutional perspective, there are two factors that arguably contribute to this crisis of democratic confidence.

The first is the diversionary influence of the traditional separation of powers. One of the most baleful effects of the traditional theory is that it obliges its advocates to shut their eyes to the realities of modern government.  This substantially limits its ability to fulfil its ostensibly positive function as a normatively valuable method of organising institutional power. Separation is not advocated for separation’s sake but because the specific form of separation proposed purports to produce positive normative effects. In its fullest versions, the model is not one of checks alone. It is a theory of checks and balances in accordance with which the adoption of particular checks should lead to institutional balance.

This necessarily assumes, however, that the suggested scheme of separation is a meaningful one. The difficulty with the traditional model is that it concentrates its concern on an empty and impoverished classification of government functions. By focusing on a narrow and formalistic classification of functions, the tripartite theorist ignores the way in which power and influence is actually distributed and exercised across government. The tripartite model directs attention away from real-world power relationships, eschewing Madison’s warning about parchment barriers to rely instead on an artificial classification of institutional functions.

This studied indifference to the realities of political influence is compounded by a second factor: the trend, most notably in political discourse, towards electoral monism. This reflects an increasingly common misperception that elections provide the sole source of legitimacy in a democratic system. Echoes of this refrain can be identified in the focus of some critics on the unelected character of courts or administrative agencies. Similarly, recent attempts in Ireland and the U.K. to abolish or reform second chambers have been justified by advocates on the basis that the membership of these bodies presently includes those who have not been directly elected by the public at large.

Yet, as recent experiences in Iraq, Afghanistan or Zimbabwe starkly illustrate, it is a mistake to confuse elections with democracy. Periodic images of smiling voters waving their ink-stained fingers for the international media do not magic away ongoing problems of insecurity, inequality and corruption. Indeed, as the recent Global Commission on Elections, Democracy and Security report on the American political process demonstrates, democratic dysfunction is not confined to these volatile post-conflict states. The simple holding of an election does not a democracy make.

From the point of view of the separation of powers, the problem with electoral monism is that it promotes a damaging lack of diversity in a system supposedly based on autonomous checks and balances. Elections – like any form of decision-making procedure – have in-built biases and incentives. This means, for example, that certain forms of behaviour or policy are more likely to be electorally rewarded. This, in turn, can additional status on individuals or interest groups that are in a position to assist in delivering such rewards. Elections may, accordingly, produce ‘rival’ representatives that are, in fact, more similar than not in terms of their pedigree, their personalities their attitudes and their incentives.

In many countries – perhaps most notably the U.S. – the success of a candidate often depends on their ability to attract substantial levels of financial support from private donors. That candidates from rival parties often depend to a large extent on funding from the same industries provides one example of a resulting similarity of incentives.

Media attention is another valuable commodity for prospective candidates. The Leveson inquiry in the UK has cast light on how political parties over several years cultivated questionably close ties with Rupert Murdoch’s media empire in the alleged pursuit of favourable media coverage. Members of the Irish government meanwhile have remained willing to appear at national and international events with major media owner Denis O’Brien, despite the conclusions of a judge-led tribunal that the businessman made a six-figure payment to a serving government minister in circumstances giving rise to a reasonable to a reasonable inference that the motive for making the payment was connected with the public office of the minister.

Ordinary citizens too can wield additional influence within the electoral system where economic, demographic or geographical factors make them critical to the strategy of a prospective candidate.

That is not to underplay the symbolic and practical significance of the electoral process. Elections are unquestionably critical to any functioning democratic system. There is a core of truth, however, to the classical and medieval conception of elections as an oligarchic system of selection. Indeed, this insight of the ancients arguably encapsulates much of the prevailing public discontent with government from both left and right. What are calls for action by “the 99%” if not the articulation of a belief that our democracies have become oligarchies in fact if not in design?

Of course, the fact that a procedure has in-built biases is both unavoidable and, in the abstract, unobjectionable. The difficulties under examination here arise when a combination of electoral monism and an empty separation of powers means that the biases produced by that procedure dominate government decision-making to the exclusion of other legitimate perspectives. The traditional model encourages a false complacency about the existence of checks and balances within government at the same time that electoral monism undermines the legitimacy and thus independence of non-elected institutions. If the point arrives where institutional processes – the courts, or administrative agencies, for example – become party politics by another means, it is difficult to claim that either checks or balance remain.

At a time when American politics appears increasingly polarised, it might seem surprising to suggest that government lacks sufficient separation. It might reasonably be suggested that, if the dysfunctionalism of the debt ceiling crisis and impending fiscal cliff indicate anything, it is surely that American institutions have too many checks and balances.

The response to this may be that the U.S. system lacks the right type of checks. First of all, the biases of the electoral system mean that, despite polarisation, many elected politicians remain more similar to each other than they do to their electorates. This explains in part why ‘Washington’ so often seems a term of abuse in American politics. Secondly, the two-party nature of American politics makes it a zero-sum game in which partisan obstructionism is a rational tactic. Where the primary check on a political party is the opposition of a single political party, there is logic to a strategy based on automatic opposition and the patient waiting of one’s turn. That would not, for example, be the case if an elected institution was subject to the check not only of a periodic election but also of co-operation with a separate and autonomous institution with alternative values or incentives.

The challenge for a new separation of powers system is accordingly not simply to take account of existing institutional realities but to devise an institutional scheme which promotes an adequate diversity of autonomous voices.

In this regard, it is notable that many of the alternative models of separation that have been suggested so far seek to replace the tripartite division of powers with a system which more accurately reflects the existence of differing political or institutional views in contemporary government. Levison and Pildes, for example, have suggested that the theory should be re-focused to concentrate on the separation of political parties rather than functional powers. I have argued elsewhere in favour of a triangular model of separation which identifies particular institutions with the representation of constituent social interests. Others like Chafetz and Bulman-Pozen have considered how the divergence of interests and views between central and local governments can be characterised as a vertical separation of powers. What is instructive is that each of these accounts implicitly endorses the significance of independent outlook by separating power in a way that tracks the presence within the government framework of an autonomous and independent perspective. That is not to say that the demarcations identified by these different models will always lead to divergent or conflicting views. The point is rather that, by separating power between bodies that are likely – whether for political, representative or institutional reasons – to exercise an independent judgment, these models re-introduce the value of autonomous checking into the inter-institutional relationship.

It might be argued, however, that these models need to go further to take into account the positive objectives of a system of separated powers: that aim of ensuring a diversity of representative perspectives in public decision-making. This requires more than the existence of bodies that are psychologically independent of elected institutions. It requires that these bodies be programmed to respond to different forms of decisional consideration and that their mandate be recognised as democratically legitimate. This, critically, would oblige elected institutions to respond to or take these alternative perspectives into account.

How might this be achieved? There are various possibilities that merit further consideration. One is to focus more clearly on the existing legitimate differences of decision-making technique that arguably exist, for example, between legislatures, courts and agencies. A second might be to consider alternative mechanisms of democratic selection – such as citizens assemblies or a jury-style lottery – which would be less susceptible to monolithic or oligarchic influences. A third might even be to re-visit classical ideas of mixed government by considering whether a revised separation of powers could give greater representative voice to different social interests. Regardless of the strategy pursued, however, the first step is to plainly to abandon the arid formalism of the traditional model. Only then can we fully investigate how to put the separation back into the separation of powers.


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