Separating Power: Essays on the Founding Period

Separating Power: Essays on the Founding Period

by Gerhard Casper
     
 

ISBN-10: 0674801407

ISBN-13: 9780674801400

Pub. Date: 04/28/1997

Publisher: Harvard

The separation of powers along functional lines--legislative, executive, and judicial--has been a core concept of American constitutionalism ever since the Revolution. As noted constitutional law scholar Gerhard Casper points out in this collection of essays, barren assertions of the importance of keeping the powers separate do not capture the complexity of the

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Overview

The separation of powers along functional lines--legislative, executive, and judicial--has been a core concept of American constitutionalism ever since the Revolution. As noted constitutional law scholar Gerhard Casper points out in this collection of essays, barren assertions of the importance of keeping the powers separate do not capture the complexity of the task when it is seen as separating power flowing from a single source--the people. Popular sovereignty did not underlie earlier versions of the separation of powers doctrine.

Casper vividly illustrates some of the challenges faced by Washington, Adams, Hamilton, Madison, Gallatin, Jefferson, and many others in Congress and the executive branch as they guided the young nation, setting precedents for future generations. He discusses areas such as congressional-executive relations, foreign affairs, appropriations, and the Judiciary Act of 1789 from the separation of powers vantage point.

The picture of our government's formative years that emerges here, of a rich and overlapping understanding of responsibilities and authority, runs counter to rigid, syllogistic views. Separating Power gives us a clear portrait of the issues of separation of power in the founding period, as well as suggesting that in modern times we should be reluctant to tie separation of powers notions to their own procrustean bed.

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Product Details

ISBN-13:
9780674801400
Publisher:
Harvard
Publication date:
04/28/1997
Edition description:
New Edition
Pages:
204
Product dimensions:
5.00(w) x 7.50(h) x (d)

Table of Contents

1The Task of Separating Power1
Introduction1
The Separation of Powers Doctrine during the Period of Constitution-Making7
The Separation of Powers in State Constitutions12
The Transition from the Articles of Confederation to the Federal Constitution16
2The Conduct of Government During the Washington Administration23
Communications between the Executive and Legislative Branches23
Establishment of the Departments of Government33
The Conduct of Foreign Relations: The Algiers Problem45
"A More Effectual Mode of Administering"67
3Appropriations of Power70
Historical Roots in English Appropriations Law71
Fiscal Constitutions74
The First Appropriations Bills79
The Heroic in the Mundane93
4Jefferson's "Shackles of Power"97
Jefferson's Changing Roles: The Challenge of Consistency99
The Federal City as a Symbol of the Separation of Powers102
Jefferson's First Annual Message: A Change in Convention103
The War Power: The Conflict at Tripoli107
The Spending Power: Specificity and Deficiency of Appropriations111
The Louisiana Purchase120
5The Judiciary Act of 1789 and Judicial Independence132
The Judiciary in France, England, and the United States135
The Challenge of an Independent Judiciary137
The Judiciary Act's Limitations on Judicial Power145
Notes155
Acknowledgments189
Index193

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