Does Separation of Powers Promote Stability and Moderation?

Abstract

It is often asserted that separation of legislative powers tends to make legislation both more moderate (because concessions to all veto players are needed to secure enactment) and less frequent (because sufficient concessions are sometimes infeasible). The formal analysis in this paper shows this claim to be incomplete, and sometimes incorrect. Although greater separation of powers makes legislation more difficult to enact, it also makes legislation, once enacted, more difficult to repeal. Attenuating the threat of repeal means that when one faction has sufficient power to push through extreme policies, it is more likely to do so than would be the case if legislative power were more concentrated. These two effects cut in opposite directions, and it is difficult to say, as a general matter, which will predominate. Indeed, increasing the fragmentation of legislative power may sometimes increase both the expected frequency and the expected extremism of legislative enactments. ∗I am grateful to Ethan Bueno de Mesquita, Glenn Cohen, Tiberiu Dragu, Christopher Elmendorf, Justin Fox, Jake Gersen, Jim Greiner, Alex Hirsch, Stuart Jordan, Adriaan Lanni, Elizabeth Magill, John Manning, Ben Roin, Ken Shepsle, Adrian Vermeule, Mark Wu, and participants in the Harvard Law School Conference on Political Risk and Public Law, the University of Virginia Conference on Political Economy and Public Law, and faculty workshops at Harvard University and Fordham University for helpful comments on earlier drafts. †Professor, Harvard Law School, Griswold 509, Cambridge, MA 02138. Email: mstephen@law.harvard.edu Tradition has it that in 1789, shortly after Thomas Jefferson returned from France, he and George Washington were arguing over breakfast about the design of the U.S. Constitution. Jefferson is said to have asked Washington why he had agreed to a bicameral legislature with a separate Senate. Washington replied by asking Jefferson why he had just poured his coffee into his saucer. “To cool it,” Jefferson answered. “Ever so,” said Washington, “we pour legislation into the senatorial saucer to cool it” (Farrand 1966). Although this story is probably apocryphal, it captures a familiar argument not only for bicameralism, but for the separation of legislative powers more generally. Such separation is thought to encourage moderation and stability, preventing ill-considered proposals from becoming law, and indeed reducing the overall frequency of legislative action. Thus James Madison defended bicameralism in Federalist 62 in part by asserting that because “the faculty and excess of law-making seem to be the diseases to which our governments are most liable,” it made sense to provide for a second legislative chamber as an “additional impediment ... against improper acts of legislation.” In Federalist 73, Alexander Hamilton made a similar argument in favor of a presidential veto. According to Hamilton, the President’s veto power “furnishes additional security against the enaction of improper laws” by establishing “a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.” Hamilton was careful to acknowledge that the “power of preventing bad laws includes that of preventing good ones,” but, like Madison, he argued that on net the “injury that may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.” In making these arguments, Washington, Hamilton, Madison, and other members of the Founding generation were developing an informal (though quite sophisticated) positive political theory of the separation of powers. Some of their arguments emphasized the particular qualities that the occupants of the different offices were likely to possess. So, for example, Representatives would be more majoritarian, while Senators would be more sober and statesmanlike (Macedo 2009). The Founders also sometimes contended that separation of powers would foster more deliberation and would help cultivate civic virtue (Sunstein 1985, 1993b). But there is also a clear strain in their analysis that focuses simply on the idea that a fragmentation of legislative power would make legislation more difficult, would require more compromise, and would therefore lead to a more even distribution,

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Cite this paper

@inproceedings{Stephenson2013DoesSO, title={Does Separation of Powers Promote Stability and Moderation?}, author={Matthew Stephenson and Ethan Bueno de Mesquita and Glenn Cohen and Tiberiu Dragu and Christopher Elmendorf and J. Tylor Fox and Jake Gersen and Jim Greiner and Alex Hirsch and Stuart V. Jordan and Adriaan M. Lanni and Elizabeth Magill and John F. Manning and Ben Roin}, year={2013} }