Nicolas Bergasse and Alexander Hamilton: The Role of the Judiciary in the Separation of Powers and Two Conceptions of Constitutional Order

Abstract

Since the end of the eighteenth century the separation of powers has been an essential element and, in a sense, a synonym of modern constitutionalism.¹ It may be important to spell out from the outset two underlying dimensions of the question that will be discussed here:

• A. The separation of powers was conceived of generally as a technique, a mechanism or an instrument of constitutional engineering, and more specifically as an anti-despotic, anti-absolutist organizational principle of government, and not as a goal in itself — the goal being instead and famously individual freedom.² Now, in order to understand the alternative French and American interpretations of this instrumental constitutional principle it is worth stepping back and focusing briefly on the difference between two major possible understandings of this idea of individual freedom.