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From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.
--The Federalist No. 47 (Madison)(1)
I. INTRODUCTION
Alexander Hamilton wrote that the judiciary was "the least dangerous" branch.(2) But which was the most dangerous? James Madison, another alter ego of Publius,(3) had no doubt. "The legislative department" he wrote, "is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex."(4) Publius therefore urged that "it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."(5) Two centuries later, things look very different. Never has the executive branch been more powerful, nor more dominant over its two counterparts, than since the New Deal. Yet against this new vortex the Supreme Court has exhausted scarcely any constitutional precautions. To the contrary, the Court has done more to safeguard presidential power in the past two decades than at any time in our history. This inversion of the Founders' concern about the most dangerous branch--whichever branch that may be--hardly registers in modern separation of powers thinking. It should.
The dominance of executive power ought by now, to lift a phrase from Charles Black, to be a matter of common notoriety not so much for judicial notice as for background knowledge of educated people who live in this republic.(6) The point holds, moreover, notwithstanding Congress's recent resurgence, especially when the larger historical context is kept in mind. Over one hundred years ago, Woodrow Wilson could still write that "
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