The logical corollary of this idea is a reconceptualization of separation of powers jurisprudence in a way that corrects for this tyranny and promotes racial justice. Moreover, this Essay notes that an unconstrained Executive (who some Founders feared as a primary source- and who arguably poses the greatest modern threat-of tyranny) has exacerbated the racialized power structure that plagues our country today. In doing so, it takes a small step toward developing a critical theory of the separation of powers and builds on recent scholarship by Professor Richard Revesz and others that have considered the distributional consequences of regulation. This Essay, written for a symposium on “Reckoning and Reformation: Reflections and Legal Reponses to Racial Subordination and Structural Marginalization,” suggests that unjust racial dynamics perpetuated by the government indicate the existence and persistence of race-based tyranny as a descriptive matter. Put another way, Professor Levinson, like the canon he criticizes, fails to take a stand as to which tyrannies are most threatening and how those manifest, preferring instead to remain “relatively detached from actual problems of power-contemporary or historical.” While Professor Levinson gets us closer to the beneficiaries of tyranny who draw on the government for their own purposes, he does not identify a tyranny specific enough to transform the idealized separation of powers framework into a functioning safeguard. Indeed, Professor Daryl Levinson, troubled by the indeterminacy of tyranny, advocates for greater attention to how societal groups wield power through the government. It stands to reason that if the prevalent separation of powers framework is generalized, it proscribes the governmental perpetuation of, at best, a nonspecific concept of tyranny. In other words, the separation of powers is an ideal type. For their part, scholars of structural constitutionalism also conceive of the separation of powers in both abstract and functionally limited ways. And yet, the Supreme Court has long “treated separation of powers as an isolated area of the law, governed by its own glacial dynamic and insulated from the social changes that stimulate development of other constitutional doctrines” particular, equal protection law. Madison's understanding of tyranny has been convincingly described as “domination arises when a value is locked in through an institutional arrangement that denies or silences the articulation of other important values.” This suggests that structural relationships, including power dynamics among the branches of government, incubate racial supremacy and other values that foster tyranny. Tyranny has been understood as the likely result of a concentration of power in either a monarch or other head of state in particular, or perhaps in a political institution. “The eloquent idea that the combination of powers in the same hands is the very definition of tyranny has been repeated by prominent constitutional theorists, including Montesquieu, Blackstone,” and others. in the same hands,” which “may justly be pronounced the very definition of tyranny.” Our nation abides by a separation of governmental powers as a means to stave off tyranny.įrom the Founding to the present, the central organizing principle of the structural constitution has been that power must be divided, diffused, or balanced to prevent-as Madison put it, in language that has become a maxim of structural constitutional law-the “accumulation of all powers. Until then, the conversation will remain bereft of some theoretical mooring and lacking in normative force. Only then can there be a meaningful and particularized separation of powers framework- specifically, a division, diffusion, and balance of activity among the branches of government-that is adequately responsive to this manifestation of tyranny. Separation of powers discourse should move beyond its typical engagement with an abstract and undefined concept of tyranny to focus on a real tyranny that both pervaded this country's founding and continues to endure: tyranny borne of racial violence, domination, subjugation, hierarchy, and so on. Excerpted From: Bijal Shah, Deploying the Internal Separation of Powers Against Racial Tyranny, 116 Northwestern University Law Review Online 244 (October 29, 2021) (161 Footnotes) ( Full Document)
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