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Southern Illinois University School of Law
Kelley, Patrick J.

A. U.S. CONSTITUTION: SOP is intended to avoid an unhealthy accumulation of power in one person or group of persons.
1. Tyranny: use of gov. power over others for the good of those exercising power only.
Framers wanted to adopt an institutional means of avoiding tyrannical power.
One way they chose to achieve this was through separation of powers
2. Montesquieu’s notion of separation of powers: structural means which would circumvent the accumulation of unchecked power.
Separation of powers: 3 branches-LEJ
The Framers found that pure separation of powers was inefficient, as powers would inevitably encroach upon one another.
They therefore adopted a “mixed system” with checks and balances
3. Madison: supported the mixed system of separation of powers
Madison’s Federalist No. 47
1)     Purists had misinterpreted the concept of separation of powers.
2)     British Constitution: doesn’t make branches totally separate.
3)     Montesquieu: the whole power of two of these departments can not be exercised by the same person or persons (can have partial agency).
Madison’s Federalist No. 48
1)     SOP will be ineffective unless these powers can be blended together in a way so that each branch can check the others, thereby balancing the power among them and preventing any one branch from becoming too strong.
2)     Merely stating in the constitution that these powers are to remain separate and distinct is insufficient: there must be a way in which this can be enforced through the system of checks and balances.
3)     Many of the states have attempted to create a pure form of separation of powers and have failed.
Madison’s Federalist No. 49
1)     For branches to check each other: should be as little involved as possible with the appointment of the members of the other branches.
2)     It is a reflection on human nature that devices are needed to control the abuses of government.
3)     You must first enable the government to control the governed; and in the next place oblige it to control itself.
4)     Because the legislature naturally predominates in power it should be divided into different branches as little connected as possible. The weakness of the executive may require that it be fortified.
Madison’s Federalist No. 51: Solution
1)     Practical and necessary to avoid unchecked power, or an over-abundance of power.
2)     Several parts must be each other’s means of keeping them in their proper places (check before the fact)
3)     Internal structures to prevent one branch from encroaching on other
4)     Pure system: loses good separation of powers was trying to achieve
4. Morrison v. Olson: Modern judicial analysis of separation of powers.
Court’s discussion of basic sep

ercise powers properly belonging to another.”
Courts may appropriately ask if a power is purely executive, legislative, or judicial. (Article 4, 5, 6: LEJ)
2. Best v. Taylor Machine Works
F: Tort Reform Act, which placed a $500,000 cap on non-economic damages and went from joint and several liability to several liability, unconstitutional.
1)     Imposed all of the costs of reducing the tort liability system on those who have been most seriously injured.
ROL: If the cap on non-economic damages is a legislative remittitur, and if the remittitur power is a power for the judiciary, and if the statute interferes with pre-trial discovery, then these should be held to be in violation of Article II:
1)     Separation of powers: court asks if it would unduly infringe on the power of the judiciary.
a)      They do this by determining the kind of impairment that this statutory provision would impose.
2)     How a court determines what type of power it has to look at:
a)      Traditional exercise of power.
Purpose of particular power and how the exercise of that power fits in with the function of a particular branch, and