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Constitutional political economy has focused heavily on designing constitutional rules sufficient to constrain governmental power. More attention has been devoted to designing rules that are effective constraints than on the institutions that would be required to enforce them. One problem is that rules are interpreted and enforced by the political elite, who tend to interpret and enforce them in ways that favor their interests over those of the masses. Democratic oversight is ineffective because voters realize they have no influence over public policy, and are therefore rationally ignorant. A system of checks and balances within government is necessary for enforcing constitutional constraints because it divides power among elites with competing interests and enables one group of elites to check the power of others. Checks and balances within governmental institutions are necessary to constrain the government from abusing its power.

Constitutional political economy has focused heavily on designing constitutional rules sufficient to constrain governmental power. More attention has been devoted to designing rules that are effective constraints than on the institutions that would be required to enforce them. One problem is that rules are interpreted and enforced by the political elite, who tend to interpret and enforce them in ways that favor their interests over those of the masses. Democratic oversight is ineffective because voters realize they have no influence over public policy, and are therefore rationally ignorant. A system of checks and balances within government is necessary for enforcing constitutional constraints because it divides power among elites with competing interests and enables one group of elites to check the power of others. Checks and balances within governmental institutions are necessary to constrain the government from abusing its power.

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and the "separation of powers" is often used to refer to distinct, and sometimes contradictory, concepts. This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values like preserving liberty, preventing tyranny, and safeguarding the rule of law. Not only is adhering to the traditional Madisonian approach to separation of powers insufficient to promote these values, it is likely unnecessary to protect them as well. Instead of the separation of powers, the organizing principle for the structure of the criminal justice system should be the distinct idea of "checks and balances." A checks-and-balances approach would emphasize the diffusion of decisionmaking power among different social and political interests in society; functional duplication and overlapping jurisdiction between different decisionmakers; insulation of decisionmaking power by individual actors within single institutions, along with more formal checking roles for non-state actors; and careful design to optimize electoral accountability.

One of the most frequently overstated concepts in American constitutional theory is the "separation" of powers. The Framers of the Constitution began with the proposition that concentration of power was to be avoided. They understood, on the other hand, that if governmental powers and responsibilities were actually set apart, each branch would exercise its powers in isolation from the other coordinate branches, to the detriment of cooperation and accommodation among them. Governance would be at best inefficient and at worst impossible.

Die US-Demokratie steht durch die Präsidentschaft Donald Trumps vor einem Belastungstest. Zwar verweisen optimistische Stimmen auf die einhegende Wirkung der checks and balances, andere aber bezweifeln deren Leistungsfähigkeit unter gewandelten politischen Bedingungen. (APuZ)