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The Separation of Powers plutocratic oligarchy. Means do not exist for action in the sole interest of
opinion. The argument that the rigid ity of our American Constitution must
the general welfare, for the essential
be sedulously preserved, to shield our
characteristic of the scheme is that all action shall be subject to the consent of privileged interests distinctly repre sented in the government. The scheme
government from tyranny, a view earn estly defended by Mr. Justice Lurton, is not invulnerable. Any higher degree of rigidity than that which our Consti tution automatically maintains for itself is both impracticable and undesirable. On the whole, the separation of powers in the American Constitution cannot be
was not made for democratic use and is
not susceptible of conversion to demo cratic use.
This is the secret of the
disharmony between American society and American politics. The rule of the people cannot be made effective for lack of appropriate institutions. Their sover eignty cannot become concrete and
practical without an organ in which it can reside." The diametrically opposite view of this subject is taken by a Justice of the
United States Supreme Court, who goes back to Montesquieu for his theory of the state and asserts the doctrine of the separation of powers in what might almost be called a re-actionary manner.’
Mr. Justice Lurton’s views of the Constitution are those of a strict con structionist on whose mind the theories of Savigny and succeeding German jur ists appear to have made scant impres sion. He seems to give too much weight to the doctrine that a rigid Con stitution is superior to a flexible one,
a doctrine in which Mr. Bryce appears to be a firm believer, but which Professor Morgan of the University of London shook to its foundations in an article
noticed in these pages last month (see 23 Green Bag 38). Prof. Morgan went too far, in our judgment, in maintaining the superiority of flexible constitutions, the advantages being nearly even, inas much as the rigidity or flexibility of a Constitution rests in the last analysis on the rigidity or flexibility of public "'A Government of Law or a Government of Men?" by Associate Justice Horace H. Lurton. North American Review, v. 193. p. 9 (Jam).
said to have worked badly. If the powers do in fact overlap each other, it
does not follow that they should be so merged as to lose their identity. The doctrine can no longer be stated in the extreme form in which Montesquieu stated it, but it has stood the test of
experience so well that when it is stated in the form which study of our insti tutions shows to be necessary it must be pronounced sound, at least with refer
ence to the American commonwealth. And that the three powers are co operative, not conflicting, and should be exercised as far as possible in orderly harmony, is a position with which all
should agree, applauding the following remarks of Mr. Justice Lurtonz
“The Courts possess neither the power of taxation nor that of the sword. They are dependent upon the legislative power for their existence and upon the execu tive for the force needful to enforce their judgments. Set in the place of an arbiter between the branches among which the functions of government have been parceled, they constitute the bal ance-wheel in our unique and splendid governmental system.
They are the
guardians of the fundamental law which conducts controllable and legislative controls the power. otherwise Their un— dominating authority is moral. They will continue to retain the authority neces sary to their free action so long only as
they shall respect their own limitations.
