The Most Dangerous Branch
Martin S. Flaherty

Modern separation of powers doctrine reflects a theoretical stalemate. For the last generation, many courts and commentators have argued that the legislative, executive, and judicial powers should be exercised by three formally distinct branches, while others have contended that the doctrine permits mixing these powers so long as the underlying functions or purposes of separation of powers are realized. Recent appeals to the Constitution's origins have only deepened the stalemate rather than resolved it.

The past can provide guidance in addressing this problem, Professor Flaherty suggests, but only if more rigorous methods of historical scholarship are employed. Once that is done, a clearer, but more complex, picture of the original understanding of separation of powers emerges. That picture bears little resemblance to accounts which posit that the Framers reached a consensus on a formalist approach to separation of powers. Instead, American constitutionalists during the last three decades of the eighteenth century experimented with Whig ideas of mixed government, a republican commitment to legislative supremacy, and only late in the day embraced what we think of as separation of powers. Even then, the proceedings of the Constitutional Convention, the text of the Constitution, and the ratification debates indicate that the Founders generally agreed only that separation of powers should serve such broader functions as balance, joint accountability, and adequate governmental energy. Otherwise the doctrine remained underdeveloped, and many early applications of it violated formalist precepts.

Americans seeking to remain faithful to the Founding, according to Professor Flaherty, should therefore abandon the formalist approach and instead apply the original separation of powers values to the different governmental circumstances we confront today. The Executive long ago replaced Congress as the branch that most threatens constitutional balance. The President's claim to electoral mandates resembles the type of simple accountability that the Founders came to suspect rather than celebrate, and the growth in federal and executive power make eighteenth-century concerns about governmental energy antiquated. Translating Founding values into this modern setting requires a two-fold approach to separation of powers. First, the Supreme Court should require a high threshold before intruding into institutional arrangements established by the political branches. Second, the Court should only intervene to further the general goals originally attributed to separation of powers.

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Return to Issue 105-7

Heidegger and the Theory of Adjudication

Brian Leiter

According to Ronald Dworkin's influential model for constructing a theory of adjudication, the theorist aims both for a descriptively adequate and a normatively defensible account of adjudication. To be descriptively adequate, the theory must make explicit the rule-governed procedures that regulate and explain the process of judicial decisionmaking. Can the theory of adjudication carry out its descriptive project? Professor Leiter argues that it cannot, for reasons that Heidegger adduced in the context of a more general attack on the philosophical idea that human practices can be made theoretically explicit. To the contrary, argues Heidegger, all such practices depend upon a range of noncognitive "coping" skills that constitute a "Background" of intelligibility against which the practice itself takes place. The Background, however, cannot itself be made theoretically explicit. Locating this theme in the works of Heidegger, Pierre Bourdieu, and the analytic legal philosopher Gerald Postema, among others, Professor Leiter shows how the general Heideggerian argument similarly frustrates the ambitions for a theory of adjudication. He concludes by showing how this argument lends support to the recent "practical-wisdom" theories of judicial decisionmaking, and why it may warrant a turn to what Professor Leiter calls a "naturalized" jurisprudence.

Return to Issue 106-2

Passion's Progress: Modern Law Reform and the Provocation Defense
Victoria Nourse

The Article presents findings from the first systematic study of intimate homicide cases that raise the heat of passion or provocation defense. Based on this data, it argues that legal reform has shaped a flawed image of passionate killing, an image that ignores, and thus partially punishes, women's attempts to separate or depart from intimate relationships. After examining the standard theories of self-control supporting reform's approach, the Article argues that the provocation defense, in practice, protects something more than the defendant's autonomy. It protects norms about relationships. We have not recognized this, the Article argues, because reform has transformed all of the normative questions into questions about reasonable persons, an intellectual strategy that has kept the law standing still in the face of social change and has led feminists and liberals to talk past each other. Finally, this Article tackles one of the oldest and most fundamental questions about the provocation defense why it is that the law protects passion at all and proposes an answer that seeks to free the law of murder from the veil of relationship at the same time as it acknowledges that there are some passions the law must continue to protect.

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Return to Volume 106-5