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ON THE SEPARATION OF POWERS: LIBERAL AND PROGRESSIVE CONSTITUTIONALISM

Published online by Cambridge University Press:  17 July 2012

Michael Zuckert
Michael Zuckert
Affiliation:
Political Science, University of Notre Dame
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Abstract

One of the main targets of Progressive constitutional critique was the system of separation of powers. Woodrow Wilson was especially critical of that feature of American constitutionalism. As has been noted by others, Wilson wanted to replace the separation of powers with the conceptual and institutional distinction between politics and administration. Wilson, however, had an extremely truncated and on the whole inaccurate view of the point and intended operation of separation of powers, as an examination of the doctrine in the philosophy of John Locke demonstrates.

Type
Research Article
Information
Social Philosophy and Policy , Volume 29 , Issue 2: Natural Rights Individualism and Progressivism in American Political Philosophy , July 2012 , pp. 335 - 364
Copyright
Copyright © Social Philosophy and Policy Foundation 2012

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References

1 The first scholar that I know of who made this important observation was Storing, Herbertin his 1964 essay on “Political Parties and the Bureaucracy” in Bessette, Joseph, ed., Toward a More Perfect Union: Writings of Herbert Storing (Washington, DC: The AEI Press, 1995), 319Google Scholar. A similar point about the Progressives was made by Vile, M. J. C., Constitutionalism and the Separation of Powers (Indianapolis, IN: Liberty Fund, 1998, 2d. ed.), 304–5, 308–9Google Scholar; Mahoney, Dennis, “The Separation of Powers,” in Thurow, Sarah B., ed., E Pluribus Unum: Constitutional Principles and the Institutions of Government (Lanham, MD: University Press of America, 1988), 25Google Scholar; Pestritto, Ronald J., Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005), Kindle edition, loc. 3503Google Scholar.

2 Wilson, Woodrow, Congressional Government, (Cleveland, OH: Meridian Books, 1956 [1885]), 26Google Scholar.

3 Ibid., 27.

4 Ibid.

5 Ibid.

6 Vile, Constitutionalism, 291. Vile is referring to Wilson's essay “Cabinet Government in the United States,” International Review, Aug. 1879. Vile sees the Civil War as the “turning point.” It ushered in a long intense period of criticism and attack upon the established constitutional theory, of an unprecedented ferocity conducted alike by practical politicians, journalists, and academics.” Vile, Constitutionalism, 290.

7 Waldo, Dwight, The Administrative State (New York: Ronald Press Co., 1948) 105Google Scholar; quoted in Vile, Constitutionalism, 294.

8 Woodrow Wilson to Ellen Axson as quoted in Walter Lippmann's “Introduction” to Wilson's Congressional Government, 11.

9 Mahoney, “Separation of Powers,” 27. Mahoney is referring to J. Allen Smith, a University of Washington political scientist, who published The Spirit of American Government in 1907 and Charles A. Beard, Columbia University historian, who published An Economic Interpretation of the Constitution of the United States in 1913.

10 Wilson, Congressional Government, 31–34; Woodrow Wilson, Constitutional Government in the United States in Pestritto, ed., Essential Political Writings, 202.

11 Wilson, Congressional Government, 202, quoting Bagehot, The English Constitution.

12 Ibid.

13 Ibid., 201.

14 Ibid., 202.

15 Wilson, Constitutional Government, 221. Wilson does not, then, accuse the Founders of designing a system in which “government would act slowly and inefficiently.” Pestritto, Wilson, loc. 3494–3495.

16 Wilson, Congressional Government, 30. Emphasis added.

17 Woodrow Wilson, “Fourth of July Address on the Declaration of Independence.” (1907), reprinted in Hammond, Scott, Hardwick, Kevin, and Lubert, Howard J., eds., Classics of American Political and Constitutional Thought (Indianapolis, IN: Hackett Publishing Co., 2007), vol. II, p. 318Google Scholar.

18 Wilson, Congressional Government, 30; Vile, Separation of Powers, 295.

19 Wilson, ibid.

20 Ibid.

21 Ibid., 53.

22 Ibid., 203.

23 Ibid.

24 Ibid., 54.

25 See, for example, James Madison to _____ (1833), reprinted in Myers, Marvin, The Mind of the Founder (Waltham, MA: Brandeis University Press, 1981), 411Google Scholar.

26 Wilson, Congressional Government, 54–55.

27 Ibid., 49.

28 Ibid.

29 Ibid., 48–49.

30 Ibid., 48.

31 Ibid., 45.

32 Ibid., 45–46. With the admission of new states, Congress regularly changed the shape of the lower federal court system. Congress had increased the size of the Supreme Court to ten in 1863 and lowered it again to nine in 1866. In 1868 Congress had stripped the Supreme Court of its jurisdiction to hear appeals in habeas corpus cases, a law upheld in Ex Parte McCardle 74 U.S. 506 (1869).

33 Ibid., 49–50.

34 Ibid., 56.

35 Ibid., 208–11.

36 Ibid., 211.

37 Ibid. Vile, Separation of Powers, 292.

38 Wilson, Congressional Government, 198.

39 Pestritto, Woodrow Wilson, loc. 3059 (ch. 6).

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41 Consider, for example, Pestritto's own account of Wilson on political parties and party competition: Woodrow Wilson, locs. 2720–2910.

42 As Walter Lipmann points out in his Introduction to Congressional Government, Wilson did not quite come out for cabinet government in that book, but he surely hinted at it in the concluding chapter. For Lippmann's claim, see Congressional Government, 13. Wilson was much more explicit in seminal essays he published prior to Congressional Government. See “Cabinet Government in the United States” (1879) in Wilson, Woodrow, Papers of Woodrow Wilson, vol. I (Princeton: Princeton University Press), 493–510Google Scholar; and “Committee or Cabinet Government” (1884), in Papers of Woodrow Wilson, vol. 2, 614–40. For his later position, the locus classicus is his Constitutional Government.

43 Wilson, Congressional Government, 206.

44 Pestritto, Woodrow Wilson, loc. 2053.

45 Pestritto is most forceful in making the case for hostility. Ibid., passim. But he is joined by Kesler: Kesler, Charles, “Separation of Powers and the Administrative State,” in The Imperial Congress, ed., Jones, Gordon S. and Marini, John A. (New York: Pharos Books, 1988), 20–40Google Scholar; Kesler, Charles, “The Public Philosophy of the New Freedom and the New Deal” in The New Deal and Its Legacy, ed. Eden, Robert (New York: Greenwood Press, 1989), 155–66Google Scholar; and Kesler, Charles, “Woodrow Wilson and the Statesmanship of Progress,” in Natural Right and Political Right, ed. Silver, Thomas B. and Schramm, Peter W. (Durham, N.C.: Carolina Academic Press, 1984), 103–27Google Scholar. And of course there is Glenn Beck.

46 Pestritto, Woodrow Wilson, loc. 1884.

47 Wilson, Woodrow, The New Freedom in Pestritto, Ronald J., ed., Woodrow Wilson: The Essential Political Writings (Lanham, MD: Lexington Books, 2005), 122Google Scholar.

48 Woodrow Wilson, “Address to the Jefferson Club of Los Angeles” (1911), reprinted in Hammond, Scott, Hardwick, Kevin R., and Lubert, Howard J., eds., Classics of American Political Thought, (Indianapolis, IN: Hackett Publishing Co., 2007) vol. 2, p. 323Google Scholar.

49 Ibid.

50 Wilson, “Address to Jefferson Club,” 93.

51 Wilson, The State, 9.

52 Ibid., 11.

53 Ibid., 12.

54 Wilson, Woodrow, “Edmund Burke: The Man and his Times,” in DiNunzio, Mario, Woodrow Wilson: Essential Writings and Speeches of the Scholar-President (New York, NYU Press, 2006), 89Google Scholar.

55 Ibid.

56 See Wilson, The New Freedom, 120–21; Constitutional Government, in Pestritto, ed., Essential Political Writings, 176; “The Study of Administration,” in Pestritto, ed., Essential Political Writings, 242.

57 Wilson, The New Freedom, 112.

58 Wilson, “Address on Jefferson,” 92.

59 Ibid., 93.

60 Storing, Herbert J., “American Statesmanship: Old and New,” in Bessette, Joseph, ed., Toward a More Perfect Union: Writings of Herbert J. Storing (Washington, DC: The AEI Press, 1995), 411Google Scholar.

61 Wilson, The State, 633.

62 Ibid., 636.

63 Ibid., 637–38.

64 Wilson, Constitutional Government, 202.

65 Wilson, “The Study of Administration,” 240, 247.

66 Ibid., 245.

67 Goodnow, Frank J., Politics and Administration (Charleston, SC: Nabu Press, 2007)Google Scholar.

68 Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar. References to Locke's book will be in the text by section number. All references are to the Second Treatise. All emphasis is in the original text.

69 Mack, Eric, John Locke (New York: Continuum Publishing, 2009)Google Scholar.

70 Federalist No. 14 (J. Madison), in Rossiter, Clinton, ed. The Federalist Papers (New York: New American Library, Mentor Books, 1961)Google Scholar.

71 I am following the account of Vile, Constitutionalism. 58–82.

72 It is a well-known fact that Locke's version of separation of powers falls short of the theory as Montesquieu, the American Founders, and American government textbooks expound it in that he does not have a fully developed conception of the independence of the judiciary. He explicitly calls for the separation of legislative and executive powers but he more or less takes for granted that the judicial power is part of the executive (Cf. Grant, Locke's Liberalism, 75). Montesquieu not only made the case for the separation of the judicial power, but gave special prominence to the independent judicial power. This must be considered an important advance in liberal constitutional theory (see Montesquieu, Spirit of the Laws, Bk. XI, ch. 6). Nonetheless, Locke indicates in various places that the judiciary should be independent of the executive head, without, however, specifying an institutional means to effectuate that independence. (See Locke, Second Treatise, secs. 125, 131, 136.)

73 For a reaction against this trend from within contemporary political science, see Lowi, Theodore J., The End of Liberalism (New York: Norton, 1969)Google Scholar.