Separation of Powers in Practice

by Tom Campbell

Overview

Each branch of American government possesses inherent advantages and disadvantages in structure. In this book, the author relies on a separation-of-powers analysis that emphasizes the advantage of the legislature to draft precise words to fit intended situations, the judiciary’s advantage of being able to do justice in an individual case, and the executive’s homogeneity and flexibility, which best suits it to decisions of an ad hoc nature.

Identifying these structural abilities, the author analyzes major public policy issues, including gun control, flag burning, abortion, civil rights, war powers, suing the President, legislative veto, the exclusionary rule, and affirmative action. Each issue is examined not from the point of view of determining the right outcome, but with the intention of identifying the branch of government most appropriate for making the decision.

Product Details

ISBN-13:	9780804750271
Publisher:	Stanford University Press
Publication date:	07/22/2004
Edition description:	1
Pages:	248
Product dimensions:	6.00(w) x 8.90(h) x 0.60(d)

About the Author

Tom Campbell is a former five-term U.S. Congressman and one-term California State Senator. He was a Professor of Law at Stanford for nineteen years, and is currently Bank of America Dean and Professor of Business at the Haas School of Business, University of California, Berkeley.

Table of Contents

	Preface	ix
1.	Introduction	1
Part 1.	Structural Features of the Separation of Powers
2.	Synposis of the Advantages of the Separate Branches of Government	19
3.	Rules of the Legislative Process	29
4.	Statutory Construction: The Courts Review the Work of the Legislature	51
5.	Stare Decisis: The Self-Imposed Constraint by the Judicial Branch Not Shared by the Other Branches	68
Part 2.	Case Illustrations of the Separation of Powers
6.	The Proper Roles of Government: The Case of Obnoxious Speech	87
7.	The Exclusionary Rule: When Is a Matter Constitutional, When Is It Only Policy?	101
8.	Affirmative Action: The Use of Race by Government	120
9.	The Fiesta Bowl: Unintended Consequences of Judicial and Legislative Activism	133
10.	Defining Constitutional Rights: Roe v. Wade	143
11.	The Civil Rights Act of 1992: The Burden of Proof as a Judicial Function Used to Achieve a Legislative Result	159
12.	Two Statutes, a Hundred Years Apart: When Court Interpretation Changes between and after Two Separate Legislative Acts	172
13.	When the Supreme Court Does Not Do Its Job: The Second Amendment	178
14.	Methods of Solving Disputes between (and within) the Branches of Government	185
15.	Another Method of Solving Interbranch Disputes: Legislators Going to Court to Sue the Executive Branch	193
	Index	223

Editorial Reviews

"Few people have viewed American government from so many angles as Tom Campbell. As a five-term Congressman and a California state senator, he learned what the states and the federal government each do best, and what Congress, the executive branch and the courts each do best. With erudition and vivid case studies, he has drawn his political experience into a rich and insightful volume of essays on the separation of powers. No book so learned in the law has ever looked at the comparative advantages of each branch of government through the lens of such lived experience." —Kathleen M. Sullivan, Dean, Stanford Law School


"Tom Campbell takes a strikingly innovative and sophisticated approach to a fundamental constitutional question: the separation of powers that is the bedrock of our national government. His service as a congressman adds richness and realism to his scholarship. These essays will prove fascinating to all who are interested in wise government and the structural basis for American freedoms."





—Robert H. Bork,Distinguished Senior Fellow, The Hudson Institute


"Tom Campbell's knowledge of the intricate rules of both Houses of Congress and of how the lawmaking process really works generates many unique insights. This excellent book will be important reading for scholars and practitioners of law and public policy as well as an invaluable primer for all U.S. public officials." —Jesse H. Choper, Boalt Hall School of Law, University of California, Berkeley

From the Publisher