Chapter 1: What is the Constitution's role in dividing power?
The Constitution isn't just a statement of ideals. It's a framework for power. The founders believed liberty depended not only on rights, but on how authority is divided, who makes the law, who enforces it, and who interprets it. They built a system designed to prevent any one institution from becoming too powerful. That system slows decisions and complicates actions.
But is that structure a weakness or the very safeguard that protects freedom? Hi, everyone. I'm Lynn Thoman, and this is Three Takeaways. On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better.
Chapter 2: How does the separation of powers protect liberty?
Today I'm excited to be with Cass Sunstein. Cass is a professor at Harvard Law School and one of the most cited legal scholars in the world. He's the author or co-author of dozens of books, including books with Nobel laureates Danny Kahneman and Richard Thaler. From 2009 to 2012, Cass served under President Obama as the administrator of the Office of Information and Regulatory Affairs.
It's not a sexy sounding job and it's not a job that most people have ever heard of, but it sits at the center of American power. He reviewed and oversaw federal regulations across the executive branch from the Justice Department and the EPA to Homeland Security and the Department of Agriculture. His new book is Separation of Powers. Cass, it's great to be back with you.
Thanks so much for joining us.
It's great to see you, and I am very grateful to you for having me.
Chapter 3: What are the six separations of powers described by the guest?
Cass, the founders obsessed over separation of powers. What were they afraid would happen if it failed?
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.
Chapter 4: Why is it important that courts can't make laws?
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.
In plain terms, what does separation of power actually mean, and what does it do for ordinary people?
Let's get at the sixth, shall we? Courts can't make law.
Chapter 5: What happens when the executive can interpret laws?
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. That ensures a kind of capacity for self-government. Second, courts can't execute the laws.
That's extremely important because we have an executor of the laws, that is the executive branch, which has incentives and safeguards if things are working well, and independence, which means if the judge is mad at you, the judge can't go putting you in jail. There's a separation between lawmaking and execution of the laws. That's really important.
And if we think of fascist or communist systems, the combination of judicial and executive authority is a very bad thing from the standpoint of liberty. The legislature can't execute the laws. That's very...
Chapter 6: How does the Constitution prevent concentration of power?
very important. It means that you have two safeguards before you get in trouble. The legislature has to authorize the executive to act, and then the executive has to decide independently to go against you. The legislature can't interpret the laws. That's very important because the legislature doesn't have
neutrality with respect to the meaning of, let's say, the Constitution of the United States. So we need a different body so as to prevent self-interested interpretation. The main event, which is the executive can't interpret the laws or make the laws, is something I'm just going to put in bold letters. And it's going to be like an airplane in the sky. And we can talk more about it if we like.
Chapter 7: What risks arise from weakening separation of powers?
But the framers got one thing wrong. They were most scared of the legislature. They should have been most scared of the executive. They did something right, which is they forbade the executive from being the authoritative interpreter of the law. That's a separation of powers. And they prohibited the executive from making the law. That's the separation of powers also.
That's our little family of six friendly diners.
And how is separation of powers different from checks and balances? Many people conflate them.
Chapter 8: What are the main takeaways regarding separation of powers?
What Madison emphasized in talking about how the Constitution protects against tyranny was separation. So the executive doesn't make the law, the executive doesn't interpret the law, the legislature doesn't execute the law, the legislature doesn't interpret the law. That's separation of powers.
Checks and balances means that each gets to constrain the other independent of the mere fact of separation. That might sound like gobbledygook. You can't have a law without presidential participation through the opportunity to veto. The head of the executive branch can be impeached by the legislature. That's a check.
The system of checks and balances involves some mutual constraints that is independent of separation. You can think of the fact that the court can strike down laws as unconstitutional as both separation of powers and checks and balances. Separation meaning it's a different body and check meaning the court gets to say to Congress, sorry, but the First Amendment stands in your way.
The Constitution says that all legislative power, the power to make laws, belongs to Congress. What does that mean in practice, and why is that so essential to preserving freedom?
If a legislature is around, and it is, it gets to say what the law is, and the president can't do that. So if the president wants the Clean Air Act to say something very different, it wants the Clean Air Act, let's say, to be scaled back or to be much more aggressive, Congress does that.
If the president wants, let's say, there to be some law about cryptocurrency that goes in one or another direction, Congress has to do it. The president can't get it to happen. So any exercise of authority by the president, this is going to have some exceptions, but broadly speaking, needs to have legislative permission.
So you can't have a Department of Transportation regulating road safety or an Occupational Safety and Health Administration regulating Occupational Safety and Health unless Congress has told you to. You have to ask Congress for permission. Recent presidents and not so recent presidents have occasionally transgressed that limitation on authority.
Nonetheless, the constitutional restriction is clear. Article 1, Section 1. Amazing. That's how it starts.
Why do you think so many people today seem comfortable with power being concentrated in one strong leader?
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