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Inventing Separation of Powers

This chapter focuses on separation of powers. It shows that even standard historical accounts do not fully appreciate how central the separation of powers was in the ferment that led to the U.S. Constitution. Separation of powers first of all served as a newly central tool in diagnosing perceived failures in the first state constitutions, drafted following the issuing of the Declaration of Independence. Separation of powers, hitherto a secondary idea, came to the fore to demonstrate that too much power had been concentrated in the legislatures. The same idea that exposed the problem also pointed to the solution. Separation of powers suggested that both the executive and judicial branches needed to be made sufficiently independent and equipped to check the dominant legislatures. For the judiciary in particular, that meant, among other things, salary protection, life tenure, and the emerging idea of constitutional judicial review.