What makes the United States of America the freest nation in the world? According to Justice Antonin Scalia, it’s not just the Bill of Rights – it’s the separation of powers.
Here’s part of what he said to the Senate Judiciary Committee in 2011:
Very few countries in the world have a separately elected chief executive. Sometimes I go to Europe to talk about separation of powers, and when I get there I find that all I’m talking about is independence of the judiciary, because the Europeans don’t even try to divide the two political powers, the two political branches — the legislature and the chief executive. In all of the parliamentary countries the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick them out. They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.
And the Europeans look at this system and they say, well, it passes one house [and] it doesn’t pass the other house; sometimes the other house is in the control of a different party; it passes both, and then this president, who has a veto power, vetoes it. And they look at this and they say [in faux foreign accent of indistinct origin] “Ah, it is gridlock.”
And I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a “dysfunctional government” because there’s disagreement. And the Framers would have said, yes, that’s exactly the way we set it up. We wanted this to be power contradicting power — because the main ill that beset us — as Hamilton said in The Federalist when he talked about a separate Senate — He said, yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad. This is 1787 — he didn’t know what an excess of legislation was.
So, unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the Framers believed would be the main protection of minorities — the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system.
So, Americans should appreciate that and they should learn to love the gridlock. It’s there for a reason — so that the legislation that gets out will be good legislation.
Watch the video for his full argument.