Separating power : essays on the founding period

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Separating power : essays on the founding period

Gerhard Casper

Harvard University Press, 1997

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Includes bibliographical references and index

内容説明・目次

内容説明

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.

目次

  • Part 1 The task of separating power: introduction
  • the separation of powers doctrine during the period of constitution-making
  • the separation of powers in state constitutions
  • the transition from the articles of confederation to the federal constitution. Part 2 The conduct of government during the Washington administration: communications between the executive and legislative branches
  • establishment of the departments of government
  • the conduct of foreign relations - the Algiers problem' 'A more effectual mode of administering'. Part 3 Appropriations of power: historical roots in English Appropriations law
  • fiscal constitutions
  • the first Appropriations bills
  • the heroic in the mundane. Part 4 Jefferson's "Shackles of power": Jefferson's changing roles - the challenge of consistency
  • the federal city as a symbol of the separation of powers
  • Jefferson's first annual message - a change in convention
  • the war power - the conflict at Tripoli
  • the spending power - specificity and deficiency of appropriations
  • the Louisiana purchase. Part 5 The Judiciary Act of 1789 and judicial independence: the judiciary in France, England, and the United States
  • the challenge of an independent judiciary
  • the Judiciary Act's limitations on judicial power.

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