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Will Malson Separation of Powers AC Page 1 of 3

Separation of Powers AC

We’ve come here today to provide an answer to the great question: to compete, or to cooperate? As
such, my philosophy is that competition is superior to cooperation as a means of achieving excellence.

Let’s start with definitions. I will define competition and cooperation from a common-man point of
view: how we use them in daily life.
Competition: The act of competing in order to achieve a goal.
Cooperation: The act of cooperating in order to achieve a goal.

Next is my Value, or rather anti-value. I value any system that is inherently non-tyrannical.

I’ll be explaining to you in 3 basic contentions why the philosophy of cooperation would subject human
beings to my anti-value, and how competition is the only solution. This requires a third definition:

Separation of Powers: The constitutional allocation of the legislative, executive, and judicial powers
among the three branches of government.
SOUTH DAKOTA DEPT. OF EDUCATION SOCIAL STUDIES STANDARDS GLOSSARY, no date,
doe.sd.gov/contentstandards/social/docs/SS_Glossery05-15-06.rtf (HEG)

Now let’s get into my contentions: I’ll show you in 2 steps why competition is superior to cooperation.
Will Malson Separation of Powers AC Page 2 of 3

CONTENTION 1: THE SEPARATION OF POWERS IN THE FEDERAL GOVERNMENT


PREVENTS TYRANNY.
Two points under this:

A. SOP provisions were devised by the framers to provide checks and balances to prevent
tyranny. Martin Redish 91
Martin Redish, Law Professor, Northwestern, 1991 (DUKE LAW JOURNAL, December, p. 453) (HEG)

Although one may of course debate the scope or meaning of particular constitutional provisions, it would be difficult to deny that in
establishing their complex structure, the Framers were virtually obsessed with a fear -- bordering on what some
might uncharitably describe as paranoia -- of the concentration of political power. Almost every aspect of their
ingenious political structure was in some way related to their implicit assumption that, simply put, "power
corrupts." Thus, much as a modern urban resident bolts his door shut with several different locks (so that
if one fails, another may keep out the dangers of urban life) so, too, the Framers chose to rely on a
number of different structural devices to check what they assumed to be the natural and inherent
tendency of government to proceed toward tyranny. In structuring their unique governmental form, the Framers sought to avoid
undue concentrations of power by resort to institutional devices designed to foster three political values: checking, diversity, and accountability. By
simultaneously dividing power among the three branches and institutionalizing methods that allow each
branch to check the others, the Constitution reduces the likelihood that one faction or interest group that
has managed to obtain control of one branch will be able to implement its political agenda in contravention of the
wishes of the people. By dividing power on a vertical as well as lateral plane (i.e., between the state and
federal governments), they sought to assure that not all policy decisions would be made at one political
level. And by implementing a diluted form of popular sovereignty, they assured that those in power would be generally responsive to those they represent
while reducing the danger of a tyrannical majority.

B. The SOP provisions prevent tyranny. Martin Redish 91


Martin Redish, Law Professor, Northwestern, 1991 (DUKE LAW JOURNAL, December, p. 453) (HEG)

the separation of powers provisions of the Constitution are tremendously important,


However, we believe that
not merely because the Framers imposed them, but because the fears of creeping tyranny that underlie
them are at least as justified today as they were at the time the Framers established them. For as the old adage
goes, "even paranoids have enemies." It should not be debatable that, throughout history, the concept of representative and accountable government has
existed in a constant state of vulnerability.
Will Malson Separation of Powers AC Page 3 of 3

CONTENTION 2: THE SEPARATION OF POWERS IS INHERENTLY COMPETITIVE.


Daryl Levinson 06
Daryl J. Levinson [Professor of Law, Harvard Law School] & Richard H. Pildes [Sudler Family Professor of Constitutional Law, NYU School of Law.
Carnegie Scholar 2004], “Separation of Parties, Not Powers”, Pages 5 and 6, HARVARD LAW REVIEW [Vol. 119:1], New York University, School of
Law, Public Law and Legal Theory Working Papers, NELLCO, 2006, stuff inside & brackets added for “is” on the second line; the others are in original
(HEG)

With respect to constitutional law, Part III


Part III turns to implications for both constitutional law and democratic institutional design.
conventional separation of powers analysis — [is] based on the Madi- sonian model of
shows where
inherently competitive branches checking and balancing one another — goes astray. The greatest threat to constitutional
law’s con- ventional understanding of, and normative goals for, separation of powers comes when government is unified and interbranch political dynamics
shift from competitive to cooperative. Part III then also takes up the challenge of imagining how law and political institutions might be reformed to re- store
the checks and balances that party unification undermines. In part, it does so by pursuing a strategy of institutional design, borrowing the idea of “opposition
rights” from European parliamentary democracies to sug- gest avenues for recreating party competition within government institu- tions and revisiting the
Progressive vision of a depoliticized bureaucracy as the “fourth branch” of government. Part III also explores the possibility of a more direct approach to the
problem of strongly unified government: fragmenting, or moderating, the political parties themselves. In doing so, it brings us full circle, back to the
Article’s animating recognition that the law and politics of separation of powers are continuous with, and insepa- rable from, the law and politics of
According to the political
democracy. I. FROM BRANCHES TO PARTIES A. Madison and the Mechanisms of Political Competition
theory of the Framers, “the great problem to be solved” was to design governance institutions that would
afford “practi- cal security” against the excessive concentration of political power.10 Constitutional provisions
specifying limited domains of legitimate author- ity were of minimal utility, for, as Madison explained, “a mere demarca- tion on parchment of the
constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyranni- cal concentration of all the
The solution to this great problem was, instead, to link the power-seeking
powers of government in the same hands.”11
motives of public officials to the interests of their branches. By giving “those who administer each
department the necessary constitutional means and personal motives to resist encroachments of the
others,” the Framers hoped to create a system in which competition for power among the branches
would constrain each safely within its bounds.12 With multiple government departments pitted
against each other in a competition for power, an invisible-hand dynamic might prevail in which
“[a]mbition [would] be made to counteract ambition.”13

In conclusion, the choice before you today is thus: to embrace the separation of powers, preventing
tyranny, via a competitive internal government, or to embrace the tyrannical implications inherent in
cooperation. The choice is clear. Thank you.