Skip to main content
Loading Explore guides…
Separation of Powers Debate · Acedra
Home
Explore
Law
Separation of Powers Debate
Sign in to save
Chat
If YouTube asks you to sign in, open the video on YouTube.
Watch on YouTube
Reload player
Transcript
136 segments
Copy
Hide video
0:00
Now going to proceed to the Rupe debate, and in just a moment, we'll have those participating come on up. You've been hearing a lot of me introducing people this weekend. The person that I'm going to introduce now is the person who has been doing all of the work that has allowed me to come out and steal the spotlight and introduce all of the people to you. This conference has been a long term endeavor, and truly the heart and soul of
0:28
that endeavor has been my dear friend Ben Rosma who has led the charge.
0:37
Who is now going to introduce this evening's debate.
0:51
Hi, I'm the other Ben. I know I've met almost all of you, I hope by email, and it's really good to meet all of you in person right now. It's been a really fun week, and I'm really grateful to all of you for coming. First, again, a really hearty congratulations to Professor Bamzai for a very well deserved story award. I had a brief, intellectually ambitious moment last year when I perused his recent piece Debs and the Federal Equity Jurisdiction, which he wrote with Professor Sam Bray.
1:23
I don't understand either Debs or the federal equity jurisdiction but it did convince me that Professor Bamzai is a brilliant scholar. Again congratulations. Now the Arthur Rupe Debate. The topic is, dare I say, a biting one, resolved. The separation of powers is a dangerous extraconstitutional maxim. Big, if true.
1:55
Maybe tonight, we'll find out if it's true. We have two legendary professors, along with a top notch judge to guide our conversation. Arguing in the affirmative is Noah Feldman. He's a graduate of Harvard College, who was a Rhode scholar. Went very unfortunately to Yale Law School and clerked for Chief Judge Harry T Edwards of the D. C. Circuit, and for Justice Souter. He's the Felix Frankfurter Professor of law here at Harvard Law School. He's written way too many books in
2:24
law review articles for me to even begin to describe them. His most recent book released just days ago is To Be a Jew Today: A New Guide to God, Israel, and the Jewish People. On the other side is Michael McConnell. He's a graduate of Michigan State University and went to the University of Chicago Law School. He clerked for Chief Judge J Skelly Wright on the US Court of Appeals for the DC Circuit, and for Justice Brennan.
2:51
Now he is the Richard and Francis Mallory professor at Stanford Law School. He previously was a circuit judge in the United States Court of Appeals for the Tenth Circuit. He has also written so many books, like you wouldn't believe. I pulled up his CV, and it is 14 pages long. His most recent book written with Nathan Chapman is Agreeing to Disagree : How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. Last, and probably most important is our moderator,
3:24
the honorable Stephen Menashi, Judge from the Second Circuit. He went to Dartmouth College in Stanford Law School. He clerked for Judge Doug Ginsburg and the US Court of Appeals for the DC Circuit, and for Justice Alito. He before his appointment to the bench, had a stint as law professor, and he also worked for the Department of Education. His most recent publication, based on a Westlaw search from this afternoon is
3:51
United States versus Benjamin coming soon to the Federal Reporter Fourth Series. Now I'll turn it over to Judge Menashi and our debaters.
4:12
I'm in the middle. I figured I'd be at the end, but why did I sit at the end?
4:20
Thank you very much, Ben. I'm happy to be here. Before we start the debate, I think, Michael, you wanted to make a statement. Maybe it'd be good for me to turn on my mic. Yes, I just wanted to add a personal note of congratulations to my old friend, Adichie Bamzi. We worked together on really one of the most professionally rewarding things that I ever did, which is a brace of cases in the Supreme Court, affectionately known as the Raisin cases. He and I worked, just hand and glove,
5:01
especially the first one, which had to do with jurisdiction and the conceptual basis for remedies under the takings clause of the Fifth Amendment was a very intricate and very difficult case to think through, and we just spent delightful hours hashing it out and figuring out what the best way is to approach this. It just pleases me no end for the Raisin case Victor to be the Joseph Story Award winner. Thanks very much. We can clap.
5:45
James Madison in Federal 47, says one of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the legislative executive and Judiciary departments ought to be separate and distinct. But Madison goes on to say that that criticism is misplaced because even though people talk about a principle of the separation of powers, in fact, the experience of Britain and the states showed that actually,
6:13
the powers are generally mixed and shared. He goes on to say, again, that those states that relied on a constitutional provision relying on the separation of powers, discovered that it was a parchment barrier that didn't do a lot to protect liberty, and that leads up to his famous argument. That we should have an arrangement in which ambition checks ambition and the departments all have some share in the activity of the others in order to check and balance and exercise some control.
6:42
Maybe it turns out that we don't really have principle of separation of powers deeply rooted in the Constitution, or maybe it's not as strict as some people assume or maybe the boundaries are fuzzy. To help us puzzle through these questions, we're going to entertain the resolution tonight resolves that the separation of powers is a dangerous extra constitutional maxim. We're going to hear statements from each of our debaters,
7:10
and then they're going to each have a reply and then we'll have a little bit of discussion and open it up to questions from the audience. Remind us of how long are opening? I think we had said that the opening statements would be 15 minutes each, then a five minute rebuttal each. Then discussion. Although I don't have should I keep I'll keep time if you'll keep time. That's what we'll do and so taking the affirmative is Noah Felden. Thank you, Judge. Thank you to the two Bens.
7:39
Thank you to the Federal society for inviting me and most fundamentally, to me, the idea that, as the maxim behind me with the I think it's three Ds suggests that the Federal society is open to entertaining the viewpoint of the Devil is something that I'm grateful for, and I will do my best to sustain that perspective and point of view. I also want to say that Professor then judge then Professor again, McConnell is one of the greatest role models that anyone in my line of work could have,
8:19
and his work has influenced me very much, even when we disagree, and his general perspective on the world is the inspiration that I hope that future generations of young people who want to go into the professions that he's been in will be exposed to because there's nothing better than that. I'm always honored to appear with him, and for once in our lives, we're not debating religious liberties. That'll be interesting. Last but not least, judge,
8:49
I'm so grateful to you because before I had to say anything, you'd already said the words parchment barriers. Federalist 47 and other boring terminology that put people to sleep after their excellent cheesecake and so I'm going to be spared some of that. What I'm going to do is I'm going to take the resolution seriously, and I'm going to start with the dangerous part and then go on to the extra constitutional part. By starting with dangerous, I'm going to be able to avoid the criticism,
9:22
which I can't imagine that anyone would ever raise in the halls of the Harvard Law School, that what I'm about to say is too abstract or disconnected from real legal practice. By starting with danger, I think I can start with the real world. Here's a danger that I believe is facing the United States today. Maybe a few people in the room agree with me that this is a danger. The sitting president of the United States is running for office against an opponent,
9:47
an opponent who is in fact leading in the polls and the sitting president of the United States is prosecuting that opponent, not once but twice criminally in the midst of the electoral cycle, both for prosecutions that could have been brought at any chronological moment or not at all under the discretion of the current sitting president. To me, that seems like the stuff of Banana Republics. It seems like it's deeply undermining of the possibilities of democracy,
10:19
independent of what one thinks of the legal validity of those prosecutions. That is to say, no matter who the president was, such prosecutions potentially undermine the structures of democracy. I got at least one nod, and that makes me feel good. Then that causes me to ask, why is it that given that situation, there aren't large numbers of young people sharing your views out there arguing that we need some fundamental change in the structure of
10:57
our government so that this outrage doesn't occur again in the future? I assure you that if the tables were turned and the current former president were the sitting president and were prosecuting the former vice president on two criminal charges, other young people, perhaps with fewer neckties, but otherwise equally motivated for their perception of the good of the Republic, would be making a lot of noise around this. I want to say that probably the three words
11:32
that do most to explain why in the real world, you guys aren't out marching over this issue are separation of powers. In particular, the version of separation of powers, what I will call the formalist version of the separation of powers, embody canonically in Justice Scalia's dissent in Madison against Olson, the independent prosecutor case. Now, although that's a dissent, it is one of those dissents that is on its way to being treated fully as though it were the holding of the court.
12:07
Certainly the background assumption, I think, that must underlie the thought that, well, we can't do anything about the president prosecuting his opponent in the election, is that there's no place else that prosecution could go and no way to insulate that, no way to appoint a prosecutor other than by the president, and no way to insulate that prosecutor from presidential discretionary dismissal other than that there is no other way, because of Justice Scalia's view, that,
12:39
as he put it at the beginning of that opinion, and I'm paraphrasing, if separation of powers means anything, it means that prosecution is an inherent executive power, that the entirety of the executive power sits with the president, and therefore, the independent prosecutor statute is unconstitutional. Now, I think that view as expressed in that dissent, and as applied in the real world, where we live today it's dangerous to the basic structures of democracy in our Republic.
13:12
I'm just giving you that one concrete example. I won't go on any further because it's not a hypothetical that the president is criminally charging his leading opponent. It's just the incompetence maybe of the administration and bringing the charges so late that makes it seem less upsetting. To be clear, if there are criminal convictions in either the Florida case or the January 6 case, prior to the election, and Donald Trump is elected president of the United States,
13:41
we're going to have a whole host of new constitutional fights, for example, about self pardon, that are not going to be easily answerable by the originalist means to which I'm about to turn. Those are also going to be bad for our democracy. Just having those debates is going to be bad for our democracy. I propose that this is the source of the danger. It is a source. There may be other problems too, but since I swore to myself that the words INS Picado would never exit my lips,
14:13
and I promise to stick with that, I'm going to focus on this concrete bad thing. Concrete, dangerous thing. Let me turn now to the extra constitutionality part. As Judge Masher correctly said, Federalist 47 is an amazing document by the Great James Madison, in which he tells you that separation of powers is not what's in the Constitution. He goes through in that paper, all of the state constitutions that did use phrases like that, and he says, they're all lying. Because in none of those states,
14:52
was there actually separation of powers, because the legislative executive and judicial powers are not separated in our system, and they are not even separated in the state systems that claim to have it, and the very clear implication to anyone who knows that James Madison wrote Federalist 47, which, of course, contemporaries didn't all know at that point, is that some version of I was there, I played a major role in writing this Constitution, and the reason that the separation of powers,
15:21
which is in John Adams 1780 Massachusetts Constitution is not in the Federal Constitution, is that our federal Constitution is better. It doesn't say things that aren't true. It doesn't insist on formal claims that don't correspond to reality. Separation of power sounds formal. As I'm going to say in a few moments, it's understandable that formalism would come in constitutionally in connection with it, because the phrase sounds formal.
15:48
Madison knows that, and that is why he tells us in Federalist 47, we didn't use that phrase, lest you make the mistake of importing this formalism while never living up to it because you couldn't live up to it and even Montesquieu, to use a name that I will not repeat again, but he's a big deal in Federalist 47 and elsewhere, even he mistakenly was formalist about this, but implicitly, what do you expect from a Frenchman? What then follows from Madison? What follows is a series 48, 49, and 50,
16:28
where he's showing you the necessity of combining powers from the different coordinate branches. Nothing wrong with coordinate. That's a great word coordinate. Doesn't mean anything, so I like using it. But he builds to 51, and 51 is the one that's famous to everybody who didn't go to law school, because in it, Madison says the thing that amounts to his bid for immortality namely, that in his Constitution, and by now, you can feel him taking ownership,
17:04
ambition must be made to counteract ambition. Now, that's a great phrase. What a hell does it mean? What it means is, in this context, very clearly, that relying on words that say, oh, these powers are separate. Here are their three names. Here are their three functions, won't do anything in the real world, which he spent a lot of time showing the previous papers. Therefore, the only way to assure that liberty is protected, and of course, the importance of the constitutional design in
17:37
structure is ultimately to protect individual liberty. Protecting individual liberty requires a structural solution that is not reliant on little words on parchment. The structural solution is to create a set of norms, whereby each of the occupants of the different branches of government will have not only the incentive, but the institutional capacity to counteract each other, and that's what Madison thought would make him immortal and it did make him immortal.
18:11
Now, why do we instead have this formalist version of the separation of powers, this extra constitutional formalism? The reason in present day is that Justice Scalia's tremendously influential, and in many ways, complex jurisprudence, were among other things, two principles that are in tension with each other, originalism and formalism. Justice Scalia was committed to both. He was an originalist and a formalist, and that works great, except when the original meaning of the Constitution,
18:49
its original public meaning is not formalistic, but functionalist. In 47-51, Madison explains why the version of the relationship between the different powers of government that exists in the Constitution is driven by function. The function being, ambition must be made to counteract ambition. That idea of functionalism incorporates something like the idea that a president shouldn't be able to prosecute the person running against him for office,
19:16
and therefore, imports the flexibility necessary to give a constitution that would survive under those conditions. But when Justice Scalia came to look in Madison Olson at this doctrine, his formalism, his jurisprudential commitment to the idea that there should be clear rules that the rule of law is a law of rules, as he famously put it, outweighed his originalism. It took him away from an analysis of the original meaning of the Constitution. It took him away from the language,
19:45
which does not use the word separation of powers. It took him away from the functionality, which does, in fact, give each branch certain powers over the others, and it led him to this bright line idea that there are some things that we could conceptually name like prosecution that are inherently part of the "executive power". That formalism, in this instance led him astray from his own doctrine of originalism. I conclude then by saying that what
20:15
makes the doctrine of separation of powers in its formalist mode, extra-constitutional is that the Constitution itself is functionalist, by design and by original public meaning in this sphere, and so I'm spared having to make an argument to you that in general, you ought to interpret the Constitution functionally, where I know I would lose all of you. But rather, by simply saying that where the original meaning of the Constitution demands functionalism,
20:44
anyone who's committed to originalism should adopt that principle over and against formalism, which is a very nice jurisprudential idea, but is not a jurispudential idea that is baked into the Constitution. Thanks.
21:04
The program tells me that we are debating resolve the separation of powers is a dangerous extra-constitutional maxim. A number of people have asked me, what are you really going to be debating tonight? I have to say, and I told them, each of them, I don't know. [BACKGROUND] The one thing that I requested was that Professor Feldman go first so that he could lay out some a thesis to which I would be able to respond. By the way, it's very nice to be on a stage with Professor Feldman and debating,
21:44
again, we usually debate a separation of church and state. We seem always to be debating separation of one or another. True. There used to be a doctrine of that, and now there isn't. What can we do?
21:58
I regard Professor Feldman as one of the most reasonable people in the constitutional academic world. Thus, I somewhat marvel that he's taking such an unreasonable position here tonight, but maybe that'll make it more fun. To begin with, let's talk about Federalist 47, not necessarily my favorite of the papers, but nonetheless, it is there. Professor Feldman tells us that in it, Madison says that the principle of separation of powers is not actually in our Constitution.
22:40
Is that a fair statement of your view? I'm afflicted with being able to speak the English language and read it.
22:53
He sets forth this objection from the more respectable adversaries to the Constitution. I love the little digs, which is that the three departments ought to be separate and distinct. What does he say about that? He says, No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. He is not saying that separation of powers is not in the Constitution.
23:31
He's saying it is no political truth is more important, and he goes on to say, the accumulation of all powers, legislative, executive, and judiciary in the same hands, etc may justly be pronounced the very definition of tyranny. But then he goes on to explain the sense in which he means those words and contrasting it to the sense in which the adversaries to the Constitution use those words. The difference is this, that the three branches in Madison's conception are separate in that they
24:12
derive their political legitimacy from different sources of political authority. The president does not choose the members of Congress. Congress has no agency in the selection of the president. It is true that the president, combined with the Senate, have choose the members of the judiciary. In that sense, there's no separation, but the institution of the good behavior standard means that once they're on the bench, they're no longer accountable to either the Congress or the president,
24:54
and thus, in that sense, are separate and independent. But that does not mean Madison tells us that they do not interact with each other. Federalist 48, the next paper is on what I would call checks and balances. Now, as checks and balance is also a dangerous maxim, No, so we like checks and balances, but we don't like separation of [OVERLAPPING] powers. We have that. We have what we have is both, which is to say that the three powers are separate and that they are
25:28
not dependent for their choice or their survival on the others. Then they each have powers that that can check the excesses of the other and actually, Madison favored even more political checks and balances than the ultimate Constitution had. Madison was no believer in judicial review. I don't mean to say he denied it. But it was not the first thing that he thinks about. When he asks himself the question, how are the parchment barriers of the Constitution going to be enforced,
26:09
he does not immediately say, oh we'll have a Supreme Court, and they will do that. No, in fact, that's never his reaction. When it comes to the Bill of Rights, I think we can gradually see that Madison is sort of thinking more and more about the role of courts. By then, he says, he refers to the courts, but not in Philadelphia and not in the federalist essays. [NOISE] How will these parchment barriers be enforced? It's through the checks and balances and so
26:42
the president combined with the judiciary and the Council of Revision. This was one of Madison's pet proposals, would be able to check the actions of the Congress. Congress, and especially the Senate, through advice and consent, and also through appropriations, would be able to check the president. Importantly, the states also had a complete and total political check on the excesses of the federal government because the state legislatures would choose the members of the Senate.
27:24
Since everything that the federal government did had to be passed by both the House and the Senate, that mean nothing could be passed without the consent of a majority of the representatives of the state legislatures. You can hardly think of a more brilliant solution to the question of how to protect the authority of the states. But then we also protect the authority of the federal government, specifically the Congress against the depredations of the states, which is just as
27:58
a serious a possible problem and that was to be done through Madison's negative. Another one of his pet proposals that is not accepted at Philadelphia. Madison was actually not far from being opposed to separation of powers. He was like an Uber proponent. He wanted to use the device a separation and powers and checks and balances, even more so than his fellow delegates in Philadelphia were willing to go along with. Now, checks and balances are according to Federalist 47,
28:42
they do not contradict the idea of separation of powers. This is what he wants to do is give a new, more nuanced understanding of what separation of powers means. When these three separate institutions that are independent and not under the control of the others use their powers to check the excesses of the others, that's the way the system is supposed to work. Now, Is that a useful maxim? Seems to me a pretty useful maxim, but it is true that it's not in the Constitution.
29:22
The words, separation of powers are not in the Constitution. Madison opposed in the First Congress after he had written the Federalist 47 in the First Congress, there was a proposal to add to the Bill of Rights, a provision similar to that in the Massachusetts Constitution, which specified that none of the powers of any of the branches would be exercised by the others. He opposed it because he thought it would lead to mischief, by which I think he means that he thought that could be
29:56
misconstrued as a condemnation of the idea of checks and balances, which are in his view, utterly important. Now, that brings me back to Professor Feldman's presentation, and he begins with the problem of a president of the United States prosecuting his predecessor in office. It is troubling. I recall back in 2016 being utterly appalled by the Trump rallies at which he would lead his supporters in the chant lock her up. Do you remember lock her up?
30:44
Mr. Trump himself, seems to have no hesitation about using the powers of the presidency to prosecute his political opponents. At the time, I had this somewhat heretical combination of views, which is that, I think Hillary Clinton really did commit a felony. I think it was perfectly clear that she did it intentionally. I think she did it to hide evidence that had to do with how much money she and her husband were sucking up from speaking engagements in spite of the fact that
31:19
she was secretary of state and would be corrupted by that. I think that's exactly what was going on. The second half of my heretical view was I was glad that Comey decided not to prosecute her precisely because I think that it is so, I think it requires such an enormously high threshold to justify an administration prosecuting the leading candidate for president of either party. When Professor Feldman says that this looks like Banana Republic stuff, I totally agree with that.
31:59
It does look like Banana Republic stuff. But, where do we stand with Jack Smith, Professor Feldman attributes the prosecution directly to President Joe Biden says that the president is prosecuting his political opponent. Well, that's not quite true because there's a pretense out there. There's this Kabuki theater called the Special Counsel provision, no longer the statute that Justice Scalia railed against, now a regulation within the Justice Department that ostensibly leads to a person who is
32:43
independent of the president making the decisions about the prosecution, and that's Jack Smith. Now, there are numerous problems with this, including that Jack Smith was actually not eligible under the terms of the regulation to be named to that position, but also because it's such an obvious charade. What does it do? It disguises, it's like Joe Biden is actually pulling the strings. But by creating the special prosecutor, we have this illusion that somehow things are
33:19
not as bad as professor Feldman thinks they are. They are as bad as he thinks they are. But separation of powers, it's the violation of separation of powers. The attempt to pretend that the president isn't in charge of prosecution is the smokescreen that is being designed to make this situation look more palatable. Much better would it be if everybody knew who was calling the shots. Now, actually, I think very few people are fooled by this.
33:54
But the whole purpose of the special prosecutor provision is to create the illusion that the president isn't in control when, in fact, the president is in control. Now, somebody's going to be in control, and I think one of the great benefits of the formalism of executive power, and the proposition that the president is is entrusted with authority and execute the laws. One of the benefits of that is we know the lines of control. We know who's responsible.
34:29
Jack Smith is never going to be running for office. If he does abusive things, I can't do anything about it. But if I think that President Biden is turning this into a Banana Republic by abusing the powers of the office, I do have the right to do something about it. Although since I live in California, my doing something about it will not do any good.
34:52
Thank you [APPLAUSE]. Five minute rebuttal. I mentioned my admiration for Professor McConnell, and you could see why I admire him so much. That's the fair, even handed presentation, where you concede every important point that the other side has made. I couldn't be more grateful or gratified. Like Professor McConnell, I agree that the DOJ regulations leading to the appointment of a special prosecutor are mere shadow formalism and are not meaningful. We agree about that.
35:34
However, the problem isn't that we can't see the line of control to the president. We can't see the line of control to the president. The problem is that by bringing the prosecution, the president is not abusing his power because he is, according to many people's understanding of the constitution, though it's not the holding of Morrison v. Olson. He's the only person who could initiate the prosecution. When I say he's doing the prosecution, but I mean, it's just a juridical matter.
36:04
The United States is bringing the prosecution, and he could choose through a series of steps not to bring it. That's the problem. The problem is there should be a mechanism. Something doesn't have to be the same as the old independent prosecutor statute, which had all kinds of problems, but there should be some mechanism that enables a country to prosecute someone if an independent actor determines that they deserve to be prosecuted. Under separation of powers formalism, impossible.
36:35
Under Scalia separation of powers forms, that's impossible. I'm putting to you that under the original meaning of the constitution, under checks and balances, it would and should be possible. Now let me just turn to the one area where we may have a bit of nuanced difference. Although, actually, I'll mention one more point of agreement. Professor McConnell brought up so generously. It was very generous, the fact that Madison himself was so opposed to the idea of
36:59
separation of powers that when proposed as an amendment, he rejected it. The mischief of which he spoke was the mischief of formalism. He did not like the idea that a principle that, as stated, means something, separation of powers, that he had left out of the constitution intentionally, would then be brought into the constitution when it would not describe the reality of what the constitution designed. What he's doing in Federalist 47 is he's saying the idea that the powers,
37:29
and I'll quote here, "that the accumulation of all powers in one branch would be tyranny, that, of course, he agreed with, but he disagreed that the way to avoid that was the separation of powers. The way to do it was instead by functional checks and balances." Where's the nuance? The nuance difference between us is just about whether checks and balances is just another term for separation of powers, the idea that Madison rejected both in Federalist 47 and in the first Congress,
37:59
or whether they actually mean something fundamentally different. They mean something different and not in an abstract way, in a concrete way. The difference between them is that the separation of powers is a conceptual frame that suggests formal divisions. Our constitution, like the various state constitutions, does not recognize that formal divisions, instead, it's mixed and matched. Once you can mix and match in the way that, for example,
38:28
Chief Justice Marshall could have also been the Secretary of State of the United States who failed to deliver the commission to Marbury. Everyone knows this, I hope. That's a good example of functionalism without formal separation. Say nothing about question of later recusal or non recusal, just to show that old fashioned recusal ideas were not our own. But that is not formal separation. That's practical checks and balances because the framers didn't think there was
39:01
any serious problem associated with being Chief Justice of the United States and Secretary of State simultaneously. Maybe they were right maybe they were wrong about that, but that was within their functionalist analysis. That's why when you come down to it, I wanted to focus on the prosecution problem. It's a real world problem. The constitution does not, if understood, functionally, prohibit us from coming up with a statutory solution. We should have a statutory solution to it.
39:33
I'll rest there. [APPLAUSE] Well, you don't have to clap.
39:43
Madison did not oppose separation of powers as he understood it, which is to say that each of the branches have to be not under the control of the other. Then they check each other, but none of them are under the control and at the Philadelphia Convention, here are the major decisions that were made that amounted to separation of powers. The first and most important was how do we choose a president? For much of the summer, the leading view was that congress would choose the President.
40:18
That was the initial idea, and it lasted until sometime in August when I believe it was the committee on postponed matters. I love the names of the committees. My committee of detail is my absolute favorite. Where they came up with a solution and the reason for we talk about the electoral College, and it has all kinds of problems and various advantages as well. But the real reason they wanted it was because it was a way to choose the president that Congress couldn't control.
40:54
Hamilton, for example, favored popular election, even though he was no small D Democrat, he favored it because that would be a way to choose a president outside of Congress's control so having a president that has not chosen by Congress is one of the key elements. Second key element we don't think of very much, but it is the ineligibility Clause which prevents members of congress from being appointed to lucrative offices and the executive like the cabinet.
41:30
This is a huge difference from the Ministerial government that they so disliked on the other side of the Atlantic, so if somebody in Congress is going to be made a member of the cabinet, they have to leave Congress. We're not going to have Congress in control of the Executive and that's the way that works, is through the ineligibility clause. Now, there's this further problem of the emoluments clause so that members of Congress are not supposed to be named to the cabinet.
42:07
When the emoluments of the office had been increased during the term for which they were elected, we've decided to ignore that. I say, let's bring it back. That's a real thing in the Constitution and by the way, this is why it was okay for John Marshall to serve simultaneously as he had already been confirmed as Chief Justice, and he was still Secretary of State. There's no ineligibility clause that applies between those two and this actually brings up one other conceptual point.
42:44
I doubt we disagree about this, but it is an important point, which is that, separation of powers it isn't even a maxim. It's a label that we attach to a number of different provisions in the Constitution that have to do with how powers are allocated among the various branches. That's all it is, and so we might say, well, it looks like a little weird for separation of powers for John Marshall to be holding these two positions. Well, it looks a little weird doctrine doesn't carry any weight.
43:21
We actually look at the Constitution, and there's nothing in the Constitution to stop that from happening, just as there was nothing in the Constitution to keep Earl Warren from serving on the JFK commission, so what I really think if we really had time, what I would love to do is talk about each of the aspects of allocation of power among the branches and see what the underlying logic is of each of those. I bet we'd find a fair amount of agreement because
43:58
most of those are based upon very sound logic. By the way, I don't think Montesquieu is quite right when he says that the purpose of all of this is protecting individual liberty and preventing tyranny. Most of it, I think, is Republican form of government. It's to ensure that important decisions are being made by people who are ultimately accountable to the people. That is what most of the separation of powers doctrines serve. That's why removal should be in the hands of the president.
44:35
That's why excessive delegations of power are problematic.
44:43
Sometime we can tell a story about how that's all related to individual liberty, but in fact, it's related more profoundly to Republicanism. Thanks very much. I'll throw out a couple of questions before we solicit questions from the audience. The first thought that I had was about the danger, so you have this framework where you say that the danger is exemplified by the president prosecuting his political opponent, but we could obviate that danger by having a statute that
45:21
said that the Justice Department could appoint someone else who would be an employee of the Justice Department, but would be formally protected from removal and other protections and so on and that would make it not be Banana Republic type stuff. You're relying on something that I think some scholars have called, internal separation of powers that within an agency, there's, formal protections for certain employees and different functions. But then it seems like Professor McConnell is
45:50
suggesting that that would be a parchment barrier, that in fact, it wouldn't do a lot just to have that formal independence of the special prosecutor within the Justice Department, that we should in fact, make it clear to the public who is really calling the shots by recognizing the lines of accountability. My question is, is the solution you're proposing susceptible to the same critique about separation of powers that you're setting up parchment barriers to solve
46:14
a problem and we shouldn't rely on that kind of a solution? Thank you for the question. It would take some creativity to get it right. The old independent prosecutor statute didn't lodge the appointment in the Department of Justice at all. But in this group of federal judges, which was a weird way to do it, but it was a way, an attempt to figure out something that wouldn't be within the Department of Justice and let's be blunt about it.
46:42
In that model, the people who were appointing the special prosecutor were not subject to public opinion removal. They were not, fundamentally. They were drawn from the judiciary. The idea was drawn more from other systems with a common ancestry to ours, like Britain, where today, the Crown prosecution Service is an independent entity. Where the prosecutorial decisions are not made by anybody towards whom political responsibility lies. Well, I wouldn't push back.
47:14
I think you're right. Professor McConnell is right to say that we could come up with a Republican style justification. I would say it's a small D Democratic style justification for why decision should be traceable to somebody. But that's the theory of the new federalism. That's like Justice O'Connor on commandeering and justically it says this explicitly in the Morrison opinion. It's nowhere in 47 through 51. Because the idea of direct responsibility to the people wasn't that
47:47
attractive to the framers who were not small D Democrats. You could reframe it as Republicanism. But they thought that there were all governmental functions that should not be performed by anyone who was responsible to the people and you could imagine a system, a reasonable system where the decision to prosecute was one such thing. In fact, in almost every country in the world that purports to be a constitutional democracy, people have come to the view that it's actually a bad idea to have
48:15
politically elected and politically responsible people making these decisions. We think otherwise in our country, but we're outliers on that and a reasonable person, I think, could think otherwise. It's a bit like civil service reform. If our separation from Great Britain had come 30 years later, after Britain had switched over to a civil service, we'd have a different set of constitutional structures with respect to the civil service and the same is true of prosecutions.
48:38
That's not even opening the issue of private criminal prosecutions, which were certainly known to the common law, but that's an arcane topic, and therefore for another day. Do you have thoughts on that question, would it solve the problem to have that framework that would insulate the prosecutor?
48:56
I'm not sure about that and actually, I would like to know more about the way it actually works in Britain, because oftentimes structures are set up that are ostensibly independent and turned out not to be that the ostensible independence is more of a smoke screen for the real places where the power lies. I just want to say I don't know. But to pile on with something that Professor Feldman was just saying about the dangers of political control of prosecution,
49:34
I would just want to add that the states are even worse. Because in states, we have elected prosecutors and elected attorneys general. Alvin Bragg literally ran for office claiming that he would find ways to prosecute Donald Trump. That's considerably worse than anything we see at the federal level. They also seem to feel free not to enforce laws that they disagree with and the power of politically elected state prosecutors. I assume you probably agree with this,
50:17
this is far worse than anything that we have at the federal level. For a long time, things seem to be working at the federal level pretty well, but more through understandings and norms than anything else, because there was a norm that although the Justice Department chief officials would be named by and answerable to the president, that the White House did not interfere in criminal prosecution. Adams and Jefferson did, but I'm talking about, in the last 50 years.
50:55
When I was in the Solicitor General's office, we were actually forbidden even to talk to friends in the White House Counsel's office. All communications had to go through the Attorney General's office in order to make sure that there was no political pressure from the White House on what decisions were being made in the Solicitor General's office. I think that's a separation of power that is not in the constitution. It's not legally required. It was a norm, but I think was a very healthy norm.
51:26
Thanks very much. I'll ask one more question. But in the meantime, anybody who has questions to the audience, you should start raising your hand and whoever has the microphones or whatever will start locating you. But as they're doing that, the other thought I had about the constitutional piece is, I'm reminded of another time in the Federalist Madison talks about the separation of powers, which is Federalist 37, where he talks about how hard it is to
51:51
define the scope of the different departments, legislative, executive, and judicial, which he says exists as categories, but the greatest adepts in political science have been unable to define them with precision. But he gives that as an example of what calls for liquidation. We should have a series of adjudications of particular cases, and that will clarify the scope of the principle and the boundaries of the different departments. I guess my question is, isn't that really what we have?
52:19
We have a adjudicatory system where the branches push against each other, and then we have controversies and so on, where they settle the scope of the different departments and where they can overlap and where they can't, and why is that incompatible with what Madison laid out? Well, it's not incompatible in the sense that in the foreseeable scope from Madison's perspective, there was lots of liquidation. As we know, Madison was open to that liquidation,
52:46
including on issues where he was sure of the correct constitutional answer, most famously, the Bank of the United States, where he concluded that liquidation had led to the opposite conclusion, which is one of the reasons that Madison was ultimately not an originalist, which I think is at least a small problem for originalism. However, the difficulty arises when your republic lasts longer than 30 or 40 years. In consequence, the global conditions for which
53:15
your government must function evolve and change. When you go from being a I-95, if that republic, to a continental power to a global superpower. As the world changes, the requirements of the government change, and in consequence, the things that the government has to do and the needs for which it's responsive through its branches vastly expand. Then the liquidation problem becomes hard. Is the creation of the administrative state
53:48
a liquidation with respect to what the executive power could entail? If it were so, then many people who share the views of many people in this room are wasting their time in trying to pair it back and limit it because they should accept liquidation. Or is it the case that when a constitution lasts long enough, different people are arguing for different ways for its powers to be configured over time? That debate is ongoing,
54:15
and we have different modalities that we used to argue about it and different arguments. But in the end, liquidation implies a solution. We see from 200 plus years of constitutional history that on a lot of the most important questions, we don't get a single solution. We get a solution that works in one time and place, and then we get push-back and development and old ideas re-emerge. That's why you're right, Pres McConnell, you're right that the executive branch had been
54:44
doing in the post Watergate era quite well on these things. But now we're in a very different situation, and so we need to reopen and reconsider these issues. I just add that this idea of liquidating over time is what Sherif Gerges was talking about in the third panel today. But he was arguing Contra Madison that when Madison said that the liquidation would "fix" the interpretation of the provision, and Sherif was arguing, and I think Professor Feldman just joined that team.
55:33
Liquidation should never be seen as fixing because these things can be reopened. Certainly we see in American constitutional history many examples of where there were extremely long standing practices that the court eventually looks back to the constitution and says, no, we've been doing it wrong. Well, these many years, I think of one person, one vote is an example of that Chata as an example of that for better or worse. Actually, I think that one of the great virtues of having
56:14
a written constitution understood in light of its historical meaning is that it enables us to have a stance from which to criticize the way in which the status quo is operating, that otherwise, status quo bias would just lead us to continue doing things, but a written constitution understood historically always gives us an avenue or sometimes gives us an avenue to say no, stop. This may have gone on a long time, but now we see that it's really contrary to the fundamental plan of the union.
56:58
Over there, somebody has the microphone. Sure.. Brecken is going to ask a good question. Thanks, Judge. Hi, Professors. Brecken, I'm a TL here at Harvard. My question is primarily directed to Professor McConnell. I'm a formalist. I like the separation of powers, and then I think of specific instances where I might not in the case of executive privilege or perhaps in the war power space. My question to Professor McConnell is, where does the separation of powers end,
57:33
and when and where does checks and balances begin? How does that play out in specific or concrete circumstance like executive privilege? Well, I don't think they begin and end. I think that they are completely interwoven and that checks and balances don't work without separation of powers. That is the only reason why checks and balances work is because the three branches are themselves independent and not under the control of the other. To use our framers were looking across
58:09
the Atlantic with dismay at what had happened to the once glorious British Constitution, as they understood it, a bit romantically, but as they understood it, and what they saw was that the King had the crown, not the King, but the crown, had so many lucrative offices and economic benefits that it could dole out to members of Parliament, that it didn't matter who was elected to Parliament, the crown was able to buy them off. That meant that Parliament was no longer a check on the crown,
58:48
and the crown was no longer a check on the Parliament. I think our Constitution is designed to take a very different path from that. But unless they're separate, then they can't check each other. Could I add one sentence to that? I want to acknowledge here, Professor Eric Nelson, who is professor in the Department of Government here and is considerably to both Professor McConnell and my right on these questions, has emphasized that in his view, some of the framers, Wilson,
59:25
Hamilton, and others, actually thought the opposite. They actually thought that the British crown had gotten too weak relative to Parliament. They wanted a presidency that was stronger than the then-existing British monarchy. In other words, they were with Justice Thomas in Zebetasky, not with Justice Scalia in Zebetasky, complaining that on Justice Thomas' interpretation, we've got a president who strong George Washington was stronger than George the third,
59:55
and Professor Nelson's argument is precisely that that's exactly what they wanted. Some of the framers, I think you're completely right, Professor McConnell felt that way, Madison for sure. But the strong executive folks may have actually wanted something much stronger. This, by the way, it's a challenge for original meaning originalism because just as there were different points of view among the drafters, there were different possible interpretations available to
1:00:27
the ratifiers, who in real time, could very easily have had multiple views of what was actually being created. Presser Sachs has a clever solution to this, so I don't want to say that it can't be solved, but it's at least a challenge that has to be taken seriously. Professor Feldman's exactly right on this, and I was giving the David Hume version of the royal and parliament view, but it's hard to know when the two are fused in the way that they were.
1:01:00
It's hard to know, which one is controlling which, but a couple of clear places in which they wanted to revive what had been royal powers, the veto. The King had a veto. He still had it on paper. But the last time it had been used was under Queen Anne, and I think it was 1708 or 1711 or something like that. Was the last time, and it was generally assumed that if the King actually exercised the veto again, that it would be a constitutional crisis because it had really gone into destitute.
1:01:37
Our Framers wanted to revive the veto precisely in order to enable the president to be able to control protect his own office, but also to control the excesses of Congress. Then the other main way in which Parliament seemed to be dominant over the King was that by the time, It's really not quite settled yet under George the third at the time of the Constitution, but it is moving toward a system where the King can't choose his own ministers.
1:02:16
The ministers are going to be chosen by the majority faction in Parliament. Again, our founders absolutely rejected the idea that the legislative branch should be able to control the executive branch in that way. There's a whole lot too. I think Eric Nelson carries it too far, but there's a whole lot to what he has to say. Before I get another question, can I ask when are we what's our end time? 09:25. I'll keep an eye on that. We're going to this question that's right there.
1:02:55
Thank you. My question mainly goes to the dangerousness prong of the resolved. Isn't there a danger to not following a formalist separation of powers? Mainly shown by administrative power. I'm talking about agencies being able to write vague rule-making rules, basically exercising the legislative power, then basically taking actions on their own enforcement actions, exercising the executive power, and then engaging in administrative adjudication, the judicial power without the safeguards,
1:03:35
like, jury rights that are going to be there. Doesn't that show that when you don't follow a formalist separation of powers, it undermines fundamental rights and the rule of law? I think that's exactly right, but I'd be curious. Professor Feldman. I think it's a wonderful question because I think it shows you really your options. If you're a formalist, then everything you've said follows, and the entirety of the administrative state, rule-making power, administrative adjudication, all of it.
1:04:09
It's all unconstitutional in mass. Now, I'm here for it. However, [LAUGHTER] as you graduate and enter the ranks of the bar and then of the judiciary, and then ascend to your positions on our highest courts in the land, you will discover, as the people of my generation who followed your path are now in the process of discovering on a day-to-day basis, that actually, notwithstanding the attractiveness of that formalist theory, you can't actually do it,
1:04:54
because now you have responsibility as statesmen and stateswomen, actually in charge of how the United States is going to operate under our system. Should the majority today abolish the administrative state in Toto, which fortunately, they will not do, as every person in this room knows they will not do. Forget about chaos, that's a naive way of putting it. The entire edifice of a modern state that could function and
1:05:25
operate would cease to be and that would be bad for everyone in the United States, so they're not going to do it, which means that they are functionalists. What they are, unfortunately, is the thing that Madison didn't want to be. They are functionalists wearing a big T-shirt that says formalist. That is a fine place to be, ladies and gentlemen, when you are in dissent. It's just fine. You can't run the country that way. The minute you have five, you have to worry about function.
1:05:58
What's going on right now on the Supreme Court is that my contemporaries who held the precise views that you hold and who in their hearts still hold it, are realizing that in our constitutional system, you cannot apply formalism if you are on the Supreme Court and you have five votes. That's a good takeaway. Fortunately, these are people who are not only very smart, but also it turns out in certain respects, very wise, and so they're not going to sink the country.
1:06:30
For you, collectively, one of the challenges is you're in a different position than you were when my contemporaries, like me, we're in law school. Then the Scalene Trinity of judicial restraint and textualism and originalism could be maintained without worry about its internal tensions and but up about its consequences. One could be anti-consequentialist. But you can't do that in power. The intellectual challenge for your generation of
1:06:59
legal conservatives is what are you going to do when you start to theorize the Constitution knowing full-well that your formalisms cannot actually be used. The proof of that is, these folks they don't have any different fundamental views than you do, they don't have a different training, they don't have a different degree of intelligence, they just actually are in charge now. Let me just say one thing here. When we ask about the virtues of formalism, I always want to know so as opposed to what,
1:07:33
what are the alternatives? If the alternative is functionalism, we've got a real problem because it doesn't answer any question. There are always equal and opposite functionalist answers to all of these questions. To say functionalism is basically to say, you can make it up or by you, Judge Manashree and his breed [LAUGHTER] can just make it up. As though you had nothing to [OVERLAPPING]. Oh, I got out of that business. [LAUGHTER] There are two problems with this.
1:08:12
One is that there's an enormous status quo bias when people can use functionalism in this way, and almost every time you get a functionalist decision from the court. It's like, everything's fine, and the other I think a quite related issue to that is that decisions are made on the basis of the particular political policy context that you are in rather than on the basis of a wide long-term across the board policy. Why is it that the liberals and
1:08:56
conservatives divide the way they do in a case like Zivotofsky? Or why did they divide the way they did in one of the really important cases, Goldwater v. Carter, over the ability of the president to unilaterally overturn a treaty. Everybody flips, and when it turns out that George W. Bush wants to get out of the ABM treaty. The first case that comes along is going to be in this highly politicized context, and the judges just seem to vote for these short term reasons,
1:09:41
and that's what you get when you get functionalism. I'll just say if status quo bias is what I think it means, which I think it means conservatism, I'm all for it. [LAUGHTER]. Maybe we could take one last question. Is there one last question? Over here.
1:10:04
Thank you, Jonathan, also to [inaudible] Harvard. Suppose that the prosecution of a former president shows the need for some functional concerns underlying a good formalist separation of powers. But Danto's functional concerns in this case, simply lead us to separate powers more, they lead us to think that the special prosecutor ought to be separated from the executive. I suppose what I'm asking, I think this is especially for Professor Feltman is why
1:10:43
this argument is one about the dangers of the separation of powers, instead of one about the right way to allocate the formal separation? Thanks for that question, I'll answer very briefly, because the answer is yes, it would be separating the prosecution power. The problem with the phrase separation of powers is it's a formalist conceptualism that imagines that there are exactly three powers, and they're only three, and they must always be kept purely separate from each other.
1:11:16
If you think that way, you end up with Justice Scalia's dissent in Marson. Then you can't do this. But if you see a function that you need to separate, like in this case, prosecuting the person running for president and the only person who can bring prosecutions is the president, then the functional answer, in this case, is pretty clear. There are different tools to do it. Professor McConnell's right that functionalism, there's more than one way to skin the cat,
1:11:40
but the cat needs to be skinned. That's what I mean. The functional view is, let's find a way to skin the cat, and the formalist view is, sorry, not possible, our system isn't set up to skin cats. End of story. Do you have any thoughts on that? I don't read Scalia's opinion in Morrison V. Olson as reasoning from a separation of powers generality down to. What I see it is based upon very specific provisions of the Constitution that were violated by the Special Counsel Act,
1:12:15
beginning with the idea that inferior officers could be named by courts of law, but Scalia said, and I think he's absolutely right, that that just meant officers within the judicial system and that it is incongruous. It is simply inconsistent with the judicial role for them to be naming prosecutors.
1:12:42
Maybe it's wrong, but I think it's a very specific and to my mind, quite logical interpretation of the words of the statute, and it doesn't depend upon the three dangerous words, separation of powers. Well, please join me in thanking our debaters.
1:13:06
[APPLAUSE].
Here to help you learn
Sign in to keep a private conversation with your course tutor.
Ask me anything about the material…
Sign in to chat