Gordon Wood Creation of the American Republic

1. Gordon WoodCreation of the American Republic Separation of Powerd (150 ff.)

2. Basic Idea • All power derived from people • Magistrates trustees and servants • “essential to liberty that the legislative, judicial and executive Powers of Government be, as nearly as possible, independent of and separate from each other.” 150 • Roots in antiquity but source was 17th century English radicalism

3. SOP • Many meanings and easily confused with “mixed government”, a very different idea • See fn. 44, p. 151 – where is the Great Book? • Immortal Montesquieu • Americans elevated idea to first importance • Became more important after 1776

4. SOP • Not easy understand what Americans were talking about • Vague and permissive doctrine • Throughout 18th century, colonial legislatures encroached on prerogatives of royal governors • By middle 18th century, their authority in many ways exceeded House of Commons • Finance, Indian and military policy, public services • Also acted like courts, hearing private petitions, tried cases in equity, granting appeals and new trials • Revolution only intensified legislative dominance

5. SOP • State constitutions of 1776 only increased legislative domination • Granted to legislatures powers explicitly executive under English practice • Has led some historians to say SOP c. 1776 just prohibition of plural office-holding • Colonists deeply troubled by how governors used power to influence other parts of government. • Royal governors had more formal local powers than Crown

6. SOP c. 1776 • Americans by SOP in 1776 meant mainly insulating judiciary and legislature from executive manipulation • Wanted to certainly set American political development on different path than England • Applied their Whig political science • Rigid Whig ideas of SOP made it hard to fit judiciary into model since it seemed executive in nature

7. Independent judiciary • Judicial tenure a searing issue at this time • P 161 c – does GW really understand Rule of Law? • “Revolutionaries had no intention of curtailing legislative interference . . . • Jefferson to Pendleton: judge must be “a mere machine” • GW says judicial independence had to wait for years ahead