Separation of Powers, the Constitution, and Elite Theory

An Evaluation from an Anglo-American Traditionalist Perspective

Charlemagne delivered the following speech at the Old Glory Club’s “Taking the Reins” Conference in June.

The History of the Separation of Powers

The separation of powers has been a fundamental concept in Anglo-American government for more than 500 years. Chances are, the last time you studied it was in primary school. Perhaps you associate it with John Locke and “classical liberalism,” but the importance of the general concept appeared in English jurisprudence far earlier. In the 15th century, Sir John Fortescue, Chief Justice of the King’s Bench, wrote that a justice of the bench “shall swear among other things that he will do justice without favor, to all men pleading before him, friends and foe alike, that he will not delay to do so even though the king should command him by his letters or by word of mouth to the contrary.” In this description of rule of law is the kernel of the idea that the judiciary ought to pass judgment independently of the king. A future occupant of Fortescue’s position, Sir Edward Coke, argued before the king himself that the king ought not to adjudicate any cases while being ignorant of English law. Future English historians and scholars of the 17th and 18th centuries such as William Camden, Algernon Sydney, and Roger Acherley would write similar statements on the separation of the executive and judicial functions.

None of these three men explicitly wrote about the separation of the executive and legislative functions. Strictly speaking, the separation of the executive and judicial powers and the legislative and the executive, including judicial, powers were two different concepts that developed in parallel and eventually were incorporated into the same doctrine, most explicitly codified in the U.S. Constitution.

The separation of powers is a key part of the Anglo-American political formula. The Italian political theorist Gaetano Mosca (1858–1941) defined a political formula as the “legal and moral basis, or principle, on which the power of the political class rests.” The separation of powers is a legal basis for a political formula because it deals directly with the role of various “powers” in the definition and execution of the law. It is a moral basis for a political formula in that it helps secure the liberty of people against tyranny, through rule of law and accountability.

According to Mosca, the political formula “answers a real need… so universally felt, of governing and knowing that one is governed not on the basis of mere material or intellectual force but on the basis of a moral principle.” Therefore, the separation of powers, being part of a political formula, is not something that can be dispensed with. It is an essential part of the means by which those governing are legitimized.

The political formula provides for a necessary sentiment, but this does not mean that it is only sentimental. As part of this lecture, I will address the need to re-evaluate the understanding of what we call “elite theory” and comprehend the importance of the political formula, which may constrain the governing elite. Too often, we see elite theory expressed as the idea that elites rule and can do whatever they want, and everything that happens is simply an expression of their will, even if it appears at a surface analysis to be contrary to their interests. This relates to the abuse described by the German political theorist Carl Schmitt (1888–1985) and his “state of exception,” where everything that the governing elites do that is inconsistent with a balanced execution of law is said to constitute a state of exception. This is incorrect. The state of exception is actually quite rare. What is really under discussion is the misuse of executive prerogative, which is something that English political theorists wrote about at length. This concept is not unique to Carl Schmitt, and the English body of political philosophy has a deep understanding of executive prerogative.

Indeed, the English developed a serious normative tradition of political philosophy that is too often dismissed as naïve appeals to law, when it is really power that rules. The English were anything but naïve, and were describing the real conditions under which English political traditions had developed, and systems that actually effectively limited their government.

Too often, the focus on the English political tradition is ideological; for example, the obsession with dissecting “classical liberalism” as a system of values. There is immense focus on John Locke’s Two Treatises of Government, with too much attention paid to his justifications of rights and principles in his First Treatise rather than on his and other authors’ writings on the actual structure of English government.

Modern people, obsessed with “ideology,” try to make the writings of these Englishmen ideological rather than normative descriptions of their natural system of government mixed with theorizing on how the systems could be improved and made even more secure. English political theory is much more practical than it is often given credit for, and much more concerned with solving the problem of good government rather than pushing ideology.

The separation of powers was a practical means the English discovered for securing their liberty against tyranny. Any 17th- or 18th-century writer who understood the separation of powers would regard the 21st-century American government as a form of tyranny on the basis of failure to separate the powers. The executive power has been endowed with lawmaking power by the legislative, in the form of a vast bureaucracy. These bureaucracies establish “rules” under a broad mandate that gives them sweeping powers, which can be changed arbitrarily. This is the very definition of tyranny by any English standard. The bureaucracy also cannot be held to account, as pointless legislative hearings fail to produce any meaningful results when attempting to hold the ministers of the executive to account. At best, the legislature maintains the ability to remove the executive from office, but given that the executive lacks sufficient control over the bureaucracy as well, this would accomplish little in reining in arbitrary law. Once again, this is the very definition of tyranny by any English standard.

The point is not a polemic attack on the U.S. government, but an attempt to establish that the traditional Anglo-American means of securing liberty from tyranny, the separation of powers, ceased to be in effect sometime in the 20th century. The particular point in time doesn’t matter so much as the fact of it. The question to ask in response is whether or not the separation of powers is a means by which tyranny can be revoked in the future.