Cass Sunstein

It's great to see you, and I am very grateful to you for having me.

There's a kind of pedestrian answer that's extremely unoriginal.

And then there's something, I think, more interesting.

I'll start with pedestrian, which is that James Madison said that the accumulation of powers in a single person would produce tyranny.

So I'm speaking from Massachusetts, and that's where the American Revolution kind of started.

And

The idea of a monarchical authority was something that the founders sought to avoid.

And good students of Montesquieu, they thought that separating the executive, legislative and judicial authority was necessary to protect first and foremost in their account liberty, but secondarily and not like a distant second, the conditions for self-government.

And what they did with the separation of powers, and this is, I hope, the less pedestrian thought, is six different separation of powers.

It's not the separation of powers.

It's six separation of powers.

And the separation of powers is a they, not an it.

It's a little dinner party rather than a solo endeavor.

And that, I think, is the genius of our constitutional structure.

It's something of maybe a little more importance today than, let's just call it the day before yesterday, but it's something of enduring importance.

Six separations of powers.

Let's get at the sixth, shall we?

Courts can't make law.

And that, for ordinary people, means that we get to govern ourselves and that people with life tenure and guarantees of independence, they don't tell us what the law is.

So courts can't make law.