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Hastings Constitutional Law Quarterly


constitutional law, separation of powers


This Article initially will compare the United States Constitution and the British constitution both to evaluate Young, Morrison, and Misretta, and to develop a sounder approach to all structural issues. Comparative constitutional law provides some of the "experience" needed to decide abstract structural cases. Predicting the reverberations of a proposed change within a system will be easier if one has studied how similar alterations have affected similar organizations. The British constitution is particularly germane because it was a model for the American Constitution. The two countries have a shared legal tradition and frequently generate similar positive law. The British constitution presents, however, a radically different commitment to separation-of-powers. My analysis of and reaction to the British constitution helped formulate the following interrelated propositions: (1) the Supreme Court should never be distracted by various interpretive strategies from fulfilling its primary constitutional obligation to combat tyranny; (2) the Supreme Court should be wary of undermining the strong American constitutional tradition of separated powers carefully developed by James Madison to prevent tyranny; (3) because the powers to hire and fire largely determine constitutional structures, the Supreme Court should be extremely reluctant to allow members of any branch to have any extraconstitutional means of hiring or firing "principal officials" within the other two branches, particularly when those means involve the criminal law; (4) the Court should change its doctrine if one branch gains supremacy over another branch or terrorizes individual citizens. Analysis of the British constitution supports the thesis that the United States Supreme Court should be more formalistic in appointments and removal cases, particularly in cases in which one branch of government removes officers of another through criminal proceedings.