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三權分立簡史-Vittorio Bufacchi
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2025/03/30 14:32 瀏覽63 ｜回應1｜推薦1 |
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請參考拙作《探討民主政治》。
A short history of the separation of powers: from Cicero’s Rome to Trump’s America
Vittorio Bufacchi, 02/17/25
In the four weeks since he was inaugurated for his second term as US president, Donald Trump has issued dozens of executive orders – many of which are now the subject of legal challenges on the grounds they exceed his authority under the US constitution. As a result, some will inevitably end up in front of the US Supreme Court.
What the court rules – and how the Trump administration responds to its judgments – will tell us a great deal whether the separation of powers still works as US founding fathers intended when they drafted the constitution.
The concept of separation of powers is incorporated into just about every democratic constitution. It rests on the principle of the separation of powers between the three fundamental branches of government: executive, legislature and judiciary.
It’s what enables the political ecosystem of checks and balances to create the conditions for democracy to exist and freedom to flourish. But if one of the three branches of government dominates the other two, the equilibrium is shattered and democracy collapses.
We owe this idea of constitutional democracy as a tripartite division of power to an 18th-century French political philosopher, Charles de Montesquieu. He was the author of one of the most influential books to come out of the Enlightenment period, The Spirit of the Laws.
Published in 1748, this work gradually reshaped every political system in Europe, and had a powerful influence on America’s Founding Fathers. The 1787 US constitution was drafted in the spirit of Montesquieu’s recommendations.
Modern democracies are more complex than those of the 18th century – and new institutions have developed to keep up with the times. These include specialised tribunals, autonomous regulatory agencies, central banks, audit bodies, ombudsmen, electoral commissions and anti-corruption bodies.
What all these institutions have in common is that they operate with a considerable degree of independence from the three aforementioned arms of government. In other words, more checks and balances.
Notwithstanding his immense influence, the idea of a separation of powers at the heart of democracy predates Montesquieu by many centuries. One of the earliest formulations of this idea can be found in Aristotle’s work, the Politics. This includes the argument that “the best constitution is made up of all existing forms”. By this Aristotle meant a mixed government of monarchy, aristocracy and democracy.
But it was the Romans who developed a working model of checks and balances. The constitution of the Roman republic was characterised by the separation of powers between the tribune of the plebs, the senate of the patricians, and the elected consuls.
The consuls held the highest political office, akin to a president or prime minister. But since the Romans did not trust anyone to have too much power, they elected two consuls at a time, for a period of 12 months. Each consul had veto power over the actions of the other consul. Checks and balances.
The greatest advocate of the Roman republic and its constitutional mechanisms, was the Roman philosopher, lawyer and statesman Marcus Tullius Cicero. It was Cicero who inspired Montesquieu’s work – as well as influencing John Adams, James Madison and Alexander Hamilton in the US.
The Roman republic had lasted for approximately 500 years but came to an end following the violent death of Cicero in 43 BC. He had devoted his life resisting authoritarian populists from undermining the Roman republic and establishing themselves as sole despots. His death (on top of the assassination of Julius Ceasar the previous year) are seen as key moments in Rome’s transition from republic to empire.
Democracy under threat
Today our democracies are facing the same predicament. In many different parts of the world this simple institutional mechanism has come under increasing attack by individuals hell-bent on curbing the independent power of the judiciary and the legislative.
In Europe, following in the footsteps of Hungarian prime minister Viktor Orbán, the Italian far-right premier Giorgia Meloni has been pushing for constitutional reforms that reinforce the executive branch of government at the expense of the other two branches.
Checks and balances: the three branches of government. TREKPix/Shutterstock 請至原網頁觀看示意圖
The assault on the system of checks and balances has also been identified in Washington. The use and abuse of presidential executive orders is an indication of this growing political cancer.
During his time as 46th US president, from January 2021 to January 2025, Joe Biden signed 162 executive orders – an average of 41 executive orders per year. By comparison, during his first term Donald Trump’s annual average was 55 executive orders. Barack Obama before him was 35.
In his first 20 days since returning to the White House Donald Trump has already signed 60 executive orders. This has included pardoning some 1,500 people who were involved in the January 6 insurrection at the US capitol.
But of much greater concern is the Trump administration’s veiled threats to overturn the landmark decision of the US Supreme Court from 1803, Marbury v. Madison, the case that established the principle that the courts are the final arbiters of the law.
In recent weeks Trump has openly criticised federal judges who have tried to block some of his most executive orders. He’s been supported by his vice-president, J.D. Vance, who has been quoted as saying that “judges aren’t allowed to control the executive’s legitimate power”.
Meanwhile the president’s senior advisor, Elon Musk, accused a judge’s order to temporarily block the newly formed Department of Government Efficiency from accessing confidential treasury department data of being “a corrupt judge protecting corruption”.
So democracy’s delicate balancing act is under serious pressure. If the separation of powers does not hold, and the checks and balances prove to be ineffective, democracy will be threatened.
The next few months and years will determine whether the rule of law will be displaced by the rule of the strongest. At the moment the odds don’t look good for Cicero, Montesquieu and Madison.
It takes a brave person to bet on democracy to win this contest, but we live in hope that America will remain the land of the free and the home of the brave.
Vittorio Bufacchi is a Senior Lecturer, Department of Philosophy, University College Cork
* Democracy
* US politics
* Political philosophy
* Separation of powers
* Ancient Rome
* Roman history
* Educate me
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Vittorio Bufacchi is affiliated with the Labour Party in Ireland.
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本文於 2025/03/30 14:34 修改第 1 次
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憲法學者就哥大研究補助款被終止事件的公開信 -- E. Volokh等
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2025/03/30 16:53 推薦1 |
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川普政府終止哥倫比亞大學研究補助款事件，以哥大校方向當局曲服落幕。如果哥大將川普政府告到聯邦最高法院，它將是「三權分立」的一個標準案例。
A Statement from Constitutional Law Scholars on Columbia
Eugene Volokh, Michael C. Dorf, David Cole, and 15 other scholars, 03/20//25
The government may not threaten funding cuts as a tool to pressure recipients into suppressing First Amendment–protected speech.
We write as constitutional scholars—some liberal and some conservative—who seek to defend academic freedom and the First Amendment in the wake of the federal government’s recent treatment of Columbia University.
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
At the same time, the First Amendment of course doesn’t protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled “harassment.” Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.
Yet the administration’s March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies—including the demand that, within one week, it “provide a full plan” to place an entire “department under academic receivership for a minimum of five years”—as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”
Under Title VI, the government may not cut off funds until it has
* conducted a program-by-program evaluation of the alleged violations;
* provided recipients with notice and “an opportunity for hearing”;
* limited any funding cutoff “to the particular program, or part thereof, in which…noncompliance has been…found”; and
* submitted a report explaining its actions to the relevant committees in Congress at least thirty days before any funds can be stopped.
These requirements aim to ensure that any withdrawal of funds is based on genuine misbehavior on the university’s part—on illegal toleration of discriminatory conduct, not just on allowance of First Amendment–protected expression. The requirements aim to make clear to recipients of federal funds just what behavior can form the basis for sanctions. And each of the requirements aims to make sure that the sanction fits the offense.
Yet here the sanction was imposed without any agency or court finding that Columbia violated Title VI in its response to antisemitic harassment or discrimination. Even to the extent that some protesters’ behavior amounted to illegal harassment of Jewish students, no agency and no court has concluded that Columbia illegally failed to reasonably respond to such discriminatory behavior—much less failed to act at a level justifying withdrawal of nearly half a billion dollars in funds. The government’s action therefore risks deterring and suppressing constitutionally protected speech—not just illegal discriminatory conduct.
And this danger extends beyond universities. The safeguards and limits that the administration has ignored are designed to protect all recipients of federal funding from unwarranted or excessive sanctions. They protect recipients of federal funding across the ideological spectrum, including K-12 schools, hospitals, nursing homes, and business and agricultural initiatives. The administration’s failure to honor the Title VI safeguards creates a dangerous precedent for every recipient of federal financial assistance.
Steven G. Calabresi
Clayton J. and Henry R. Barber Professor of Law, Northwestern Law School
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law School
David Cole
Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Michael C. Dorf
Robert S. Stevens Professor of Law, Cornell Law School
Richard Epstein
Laurence A. Tisch Professor of Law, NYU School of Law
Owen Fiss
Sterling Professor Emeritus of Law, Yale Law School
Aziz Huq
Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Pamela Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Randall Kennedy
Michael R. Klein Professor of Law, Harvard Law School
Genevieve Lakier
Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Michael McConnell
Richard and Frances Mallery Professor of Law, Stanford Law School
Michael Paulsen
Distinguished University Chair and Professor, St. Thomas Law School
Robert Post
Sterling Professor of Law, Yale Law School
David Rabban
Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law, University of Texas Law School
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Nadine Strossen
John Marshall Harlan II Professor of Law Emerita, New York Law School
Eugene Volokh
Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
Keith Whittington
David Boies Professor of Law, Yale Law School
本文於 2025/03/30 16:54 修改第 1 次
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