Libertarian Separation of Powers
This essay concerns an oft-assumed, if insufficiently examined, relationship in constitutional law: the causal link between constitutional structure and those social and political goods that the Constitution aims to secure. Structural aspects of the Constitution such as the separation of powers are not valued for their own sake. There is no distinctive aesthetic value in particular designs for governance, no golden mean of constitutional design. Second-order constitutional design instead succeeds only if it creates desirable first-order goods. In the American context, these goods might be said to include democratic governance, individual rights, social welfare and—of central importance here—individual liberty.
