This insightful book guides readers through the transformation of, and theoretical challenges posed by, the separation of powers in national contexts. Building on the notion that the traditional tripartite structure of the separation of powers has undergone a significant process of fragmentation and expansion, this book identifies and illustrates the most pressing and intriguing aspects of the separation of powers in contemporary constitutional systems.

Dramatic issues of presidential power and executive accountability to both courts and Congress have pervaded the news for at least the last half-century. Political polarization and the election in 2016 of an "outsider" president intent on disrupting conventional governance norms have generated a seemingly unprecedented volume of new legal controversies. This updated edition addresses both separation of powers questions of long standing and many of the hot issues arising in the later Obama years and the early months of the Trump Administration. The authors have wholly revised the text's exploration of the President's "faithful execution of the laws" obligations, significantly expanded the material on presidential authority regarding immigration, and updated the material on presidential regulatory oversight to take account of the latest developments. For the first time in this text, litigation over the Foreign Emoluments Clause makes an appearance. The materials on war powers have been reorganized into two chapters, highlighting how post-9/11 developments have challenged the categorical distinctions between war and peace, battlefield and home front, and domestic and international affairs around which "war powers law" has traditionally been oriented. The book retains its clear structure and historical perspective, along with the authors' emphasis on the ethical challenges posed for lawyers in the executive and legislative branches who seek to address novel separation of powers issues in professionally appropriate ways. A resource website is available at separationofpowerslaw.com. Adopters of the book may view additional information by logging onto the site. Faculty may request login information by emailing [email protected].

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Author Jessica Korn challenges the notion that the 18th-century principles underlying the American separation of powers system are incompatible with the demands of 20th-century governance by questioning the dominant scholarship on the legislative veto. Korn's analysis shows that commentators have exaggerated the legislative veto's significance as a result of their incorrect assumption that the separation of powers was designed solely to check governmental authority.

Cover -- Half Title -- Title -- Copyright -- Dedication -- Contents -- Acknowledgments -- Introduction -- PART ONE: SEPARATION-OF-POWERS MULTIPLICITY -- Prelude -- 1 Political Institutions in the Public Sphere -- 2 The Role of Congress -- PART TWO: CONGRESSIONAL HARD POWERS -- 3 The Power of the Purse -- 4 The Personnel Power -- 5 Contempt of Congress -- PART THREE: CONGRESSIONAL SOFT POWERS -- 6 The Freedom of Speech or Debate -- 7 Internal Discipline -- 8 Cameral Rules -- Conclusion: Toward a Normative Evaluation -- Notes -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- Q -- R -- S -- T -- U -- V -- W -- Y -- Z

NEW YORK TIMES BESTSELLER • Justice Neil Gorsuch reflects on his journey to the Supreme Court, the role of the judge under our Constitution, and the vital responsibility of each American to keep our republic strong. As Benjamin Franklin left the Constitutional Convention, he was reportedly asked what kind of government the founders would propose. He replied, “A republic, if you can keep it.” In this book, Justice Neil Gorsuch shares personal reflections, speeches, and essays that focus on the remarkable gift the framers left us in the Constitution. Justice Gorsuch draws on his thirty-year career as a lawyer, teacher, judge, and justice to explore essential aspects our Constitution, its separation of powers, and the liberties it is designed to protect. He discusses the role of the judge in our constitutional order, and why he believes that originalism and textualism are the surest guides to interpreting our nation’s founding documents and protecting our freedoms. He explains, too, the importance of affordable access to the courts in realizing the promise of equal justice under law—while highlighting some of the challenges we face on this front today. Along the way, Justice Gorsuch reveals some of the events that have shaped his life and outlook, from his upbringing in Colorado to his Supreme Court confirmation process. And he emphasizes the pivotal roles of civic education, civil discourse, and mutual respect in maintaining a healthy republic. A Republic, If You Can Keep It offers compelling insights into Justice Gorsuch’s faith in America and its founding documents, his thoughts on our Constitution’s design and the judge’s place within it, and his beliefs about the responsibility each of us shares to sustain our distinctive republic of, by, and for “We the People.”

Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.