Separation of Powers and the Middle Way

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Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake. In my view, Manning’s article is the best published American law review article about separation of powers. It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong. The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.

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