Separation of Powers Or Separation of Personnel , 79 Cornell L

Cornell Law Review Volume 79 Article 1 Issue 5 July 1994 One Person One Office:ep S aration of Powers or Separation of Personnel Steven G. Calabresi Joan L. Larsen Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Steven G. Calabresi and Joan L. Larsen, One Person One Office: Separation of Powers or Separation of Personnel , 79 Cornell L. Rev. 1045 (1994) Available at: http://scholarship.law.cornell.edu/clr/vol79/iss5/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ONE PERSON, ONE OFFICE: SEPARATION OF POWERS OR SEPARATION OF PERSONNEL? Steven G. Calabres4 and Joan L. Larsent "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... whether hereditary, self-appointed, or elec- tive, may justly be pronounced the very definition of tyranny."' TABLE OF CONTENTS INTRODUCTION ................................................. 1047 I. BRITISH AND COLONIAL ANTECEDENTS TO THE INCOMPATIBILITY PRINCIPLE ................................ 1052 A. The British Background ............................... 1053 B. The State Constitutions and the Articles of Confederation ......................................... 1057 C. Summary of the Decisions at the Federal Convention ........................................... 1061 II. THE INCOMPATIBILITY CLAUSE .............................. 1062 A. The Original Meaning and Purpose of the Incompatibility Clause ................................. 1062 1. Text and Context .................................... 1062 2. Public Statements Contemporaneous With Ratification... 1065 3. Private Statements Made Prior to Ratification: The Convention Debates .................................. 1066 a. Republican Idealism .............................. 1068 b. FederalistSkepticism .............................. 1069 c. Madison's Middle Ground and the Republican Rejoinder ........................................ 1075 d. Resolution: Compromise .......................... 1077 B. The Actual Effects of the Incompatibility Clause Over the Last 200 Years ..................................... 1078 t Associate Professor, Northwestern University School of Law. $ J.D., Northwestern University School of Law, 1993. We gratefully acknowledge the helpful suggestions of Martin H. Redish, Akhil Reed Amar, Randy Barnett, Charlotte Crane, Stephen A. Gardbaum, John Harrison, Susan Davis Koniak, Gary Lawson, William P. Marshall, Saikrishna Bangalore Prakash, and Lawrence G. Sager; the research assistance of Robert Blacher, Christopher Rohrbacher, Wendy Stone, and Eric J. Wunsch; and the skillful editing of Gordon J. MacDonald. Professor Calabresi benefitted greatly from presenting an earlier version of this Article to the Boston University School of Law faculty workshop. He is also grateful to the Stanford Clinton, Sr. Faculty Fund for support. 1 THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961) (em- phasis added). 1045 1046 CORNELL LAW REVIEW [Vol. 79:1045 1. The Scorecard on "Corruption". An Ethics Rule Success? ......... ................................... 1078 C. Unanticipated Consequences: Stronger President, Reinforced Separation of Powers ...................... 1086 1. A Stronger, More Independent President................ 1086 2. Reinforcing the Separation of Powers................... 1094 III. NORMATIVE DISCUSSION: ASSESSING THE COSTS AND BENEFITS OF THE INCOMPATIBILITY CLAUSE ................... 1097 A. The Case Against the Incompatibility Clause .......... 1098 B. Rebutting the Attack: Why the Case Against the Clause Fails on its Own Terms ........................ 1102 1. The Fallacy That Governmental Efficiency Will Be Increased if Divided Government is Eradicated.......... 1102 2. Eliminatingthe Incompatibility Clause Will Weaken the Presidency, Not Strengthen It .......................... 1105 C. The Costs of Eliminating the Incompatibility Clause... 1114 1. DisparateRepresentation ............................. 1114 2. Inefficient Administration ............................ 1115 3. Paving Over the Separation of Powers ................. 1117 IV. THE UNWRITTEN INCOMPATIBILITY TRADITIONS: HISTORY, PRACTICE, AND A NORMATIVE DEFENSE ...................... 1121 A. The Tradition of Judicial-Executive Incompatibility .... 1122 1. Text and Origins: No FederalJudicial-Executive Incompatibility ...................................... 1122 a. Text and Context ................................ 1122 b. Explainingthe Gap .............................. 1125 2. Development Over 200 Years of the PartialJudicial- Executive Incompatibility Tradition .................... 1131 3. A Normative Defense ofJudicial-Executive Incompatibility ...................................... 1141 B. The Tradition of Federal-State Incompatibility ......... 1146 1. The Original Understanding.......................... 1146 a. Text and Context ................................ 1146 b. PrivateStatements and the Debate at the Convention ...................................... 1148 2. Our Actual Practice, Historically and Today ........... 1150 3. A Normative Defense of Federal-StateIncompatibility ..... 1152 CONCLUSION: SEPARATION OF POWERS, SEPARATION OF INSTITUTIONS, OR SEPARATION OF PERSONNEL? ................... 1153 19941 SEPARATION OFPERSONNEL 1047 INTRODUCTION The Framers of the American Constitution hated concentrations of government power. Through checks and balances, separation of powers, bicameralism, and federalism, they sought to preserve liberty by making it hard for government to act.2 But while the Framers took great care to separate government power horizontally and vertically among different institutions, they took only the most limited steps to prevent particular individuals from amassing absolute power by jointly holding office in more than one institution of government at the same time.3 The Framers barred Members of Congress from holding federal executive or judicial offices, 4 but the text they wrote allows joint office holding between: 1) the Executive and Judicial Depart- ments,5 2) the House of Representatives and the Senate, and 3) the federal government and the states. Accordingly, it might well be said that the original American doctrine of separation of powers contem- plated more a separation of the institutions of government than a separation of personnel. 6 Two hundred years of American history have added their gloss, and today we largely understand the separation of powers to include a one person, one office codicil. Unwritten traditions disfavor plural office holding of any kind.7 These traditions, together with the In- compatibility Clause itself, now form a vital part of America's struc- 2 See Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for PragmaticFormalism in Separation of Powers Theory, 41 DuKE LJ. 449, 456-74 (1991); see also Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary,105 HAuv. L. REv. 1153 (1992); Geoffrey P. Miller, Rights and Structure in Constitu- tional Theory, 8J. PHIL AND PoL'y 196, 210 (1991). 3 For a thoughtful defense of the separation of powers as primarily a separation of institutions (or "branches"), see Thomas W. Merrill, The ConstitutionalPrincipleof Separation of Powers, 1991 Sup. CT. Rnv. 225. 4 "[N]o Person holding any Office under the United States, shall be a Member of either house during his Continuance in Office." U.S. CONST. art. I, § 6, cl. 2 [hereinafter referred to as the "Incompatibility Clause"]. 5 This Article will use the term "department" in referring to the three institutions of our national government rather than the more common term "branch." See Calabresi & Rhodes, supra note 2, at 1156 n.6 (explaining this choice of terminology). 6 It should also be remembered in this context that two of the three great depart- ments of the national government share powers traditionally thought of as executive and legislative. Thus, the President shares in the legislative power by virtue of his veto, and the Congress shares in the executive power by virtue of the Senate's role in ratifying treaties and confirming nominees. It is accordingly a truism that ours is a government of constitu- tionally separated and shared powers. THE FEDERALIST No. 47, supra note 1, at 322 (James Madison). 7 We do not mean to suggest that these unwritten traditions are judicially enforcea- ble or that the text of the Constitution has somehow been "amended" sub silentio. Rather, we mean only that most Americans now assume that plural office holding is disallowed and therefore, as a practical matter, it does not generally occur. 1048 I08CORNELL LAW REVIEW [Vol. 79:1045 tural "Constitution."8 In our view, the Incompatibility Principle has become one of the five great distinguishing structural features of our constitutional system, along with checks and balances, separation of powers, bicameralism, and federalism. It is odd, therefore, that scholars to date have largely ignored the separation-of-powers implications of the Incompatibility Clause itself and, to a lesser degree, the unwritten incompatibility traditions. We propose to remedy this defect by describing the history of both com- ponents of the Incompatibility Principle and weighing their normative

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