Separation of Powers Before and After the Seventeenth Amendment
Abstract
To properly appraise contemporary constitutional allocations of power it is necessary to consider the origins, etiology, and content of the separation of powers doctrine. Upon this basis it becomes apparent that by undermining federalism in the Senate, the Seventeenth Amendment weakened bicameralism in Congress, which in turn eroded separation of powers between Congress and the Executive. After the Seventeenth Amendment, the United States Congress is unencumbered by a critical structural check originally designed to protect political liberty by preventing corrupt, arbitrary, and excess use of federal legislative power. This Article finds the origins of separation of powers doctrines in ancient Jewish, Roman and Greek texts; highlights the refinements to separation of powers doctrine in the writings of Montesquieu, Locke and The Federalist Papers; and distills this Western political heritage into conceptual underpinnings of separation of powers doctrine. Lastly, it provides a structural analysis of the Seventeenth Amendments’ effects on constitutional power structures; critiques three alternative proposals to limit arbitrary and excessive federal lawmaking; and considers the feasibility of relevant constitutional change. As the “last man standing,” repealing the Seventeenth Amendment is necessary to repair the Constitution’s structural integrity.