In the last few years, the Supreme Court has embraced a formalist approach to separation of powers law, allegedly justified by the Constitution’s “original meaning.” It is revolutionary, rapidly remaking the constitutional law of administration. But the Court’s engagement with history is selective and idiosyncratic. In particular, it has largely ignored what we know of governmental practice in the early republic.
This Essay attacks the Court’s use of history. It uses Jack Balkin’s analysis of legal discourse in Memory and Authority to unpack the Court’s reliance on historical arguments and to suggest avenues for critique. It draws on recent scholarship on Founding Era practice to show that eighteenth-century understandings of separation of powers were not formalist. And it argues for the restoration of Montesquieu to our constitutional memory. A key figure in the development of the Constitution, Montesquieu’s understanding of separation of powers closely tracked early republic practice. He thus points the way towards an alternative interpretation of our constitutional tradition and a more pragmatic and historically accurate structural constitutionalism in place of the Court’s growing formalist fetish.