Separation of Powers: Asking a Different Question

Abstract

What I find most intriguing about Professor Casper's essay1 is its historical description of the founders' attitude not so much toward "separation of powers," but toward separation of powers "questions." In other words, I am more interested in how the founders approached questions and in the sources of their answers than in the substance of those answers. In comparing Professor Casper's description of the late eighteenth-century approach to separation of powers questions with the predominant way of asking separation of powers questions today, I find that the two are quite different. The difference in approach is equivalent to the difference Robin West has noticed between posing a " 'constitutional question' . . . as a normative question about how we should constitute ourselves [and] as an authoritarian question about the content of the Constitution's mandates."