Montesquieu to Scalia: Cross-National Separation of

Powers in Constitutions and Free Expression

Rohnin Randles∗

*Working Paper: Please don’t cite or circulate this draft without author’s permission*

Abstract

One of the most common questions that scholars of democratic theory address is how to best

allocate and balance power across the different structures within a government. Historically,

many theorists and philosophers have postulated that structures with separation of powers

are more effective at resisting tyrannical rule. Though researchers have established the effects

of an imbalance of power between two branches of government, no study has attempted to

systematically account for the relative balance of power among all three branches working

in tandem or developed empirical metrics to this end. In this paper, I theorize that designing

separate branches of government that are equally strong strengthens conflicts across institutions,

which ultimately leads to more robust protections against tyranny. I evaluate this model

quantitatively by developing and introducing a new measure, the Separate Powers Index (SPI).

My SPI assesses the balance of power between the three branches of government as postulated

in a sample of 126 of the worlds constitutions. Using multivariate regression methods, I compare

the SPI with a cross-national index of free expression in a cross-sectional analysis during the year

2008 to systematically establish the relationship between structural provisions of institutions

that distribute power and their outcomes to protect their citizens. In addition to providing a

novel measure of tripartite power balance in national constitutions, the result of this study has

a large impact on all scholars of constitutionalism and civil liberties.

Introduction

How can we design government that most effectively protects the rights of citizens? To whom

within government should we entrust that responsibility? How should power be allocated

among our leaders? In the history of government, these questions have been approached by

nearly every thinker and national founding figure to determine how to best create institutions

of power. Prior to the proliferation of enlightenment-era political thought, most governments

∗Department of Political Science, University of Washington–Seattle

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were entrusted to a single figure with unilateral decision-making power. Eventually, political

philosophers came forth to question whether this distribution of power was truly best for the

people. There is no question that we all would prefer to have an effective government that

protects our rights and freedoms, and modern constitutional governments have devised various

systems to address this concern and separate the powers of government across different bodies.

Many authoritarian or near-authoritarian regimes in Africa and Asia relegate nearly all

power to their executive leaders, whereas parliamentary democracies throughout Europe grant

broad decision-making power to their legislatures. In the United States, the constitutional

powers of the executive branch are kept intentionally brief. The logic behind how countries

allocate their power is directly related to the objectives of government; many authoritarian

regimes prefer to centralize power to maintain their rule, while more balanced powers believe

it prevents the rise of tyranny. In 2011, U.S. Supreme Court Justice Antonin Scalia used the

Soviet Union as an example to contrast with the U.S. Constitution’s ability to protect freedoms

for so long.

...if you think that the Bill of Rights is what sets us apart...Every banana republic

has a bill of rights...The real constitution of the Soviet Union did not prevent the

centralization of power in one person or in one party. And when that happens, the

game is over. (Considering the Role of Judges under the Constitution of the United

States 2011)

Scalia was greatly dissatisfied with the argument that merely including rights in a constitu-

tion was sufficient to actualize their protection. Much like the Framers of the constitution, he

believed it was a commitment to keeping balance between the branches of government that pro-

tected the people. Without these provisions, a constitution provides only ”parchment barriers”

to protect the people from the tyranny of government (Hamilton and Jay 2015a). Though the

Framers were neither the first nor the last to consider these concepts normatively, little has been

done to investigate these concepts empirically. This paper is the first attempt to empirically

measure the level of centralization of power in national constitutions and subsequently investi-

gate the relationship between centralization and citizens’ free expression. Herein, I evaluate the

hypothesis that constitutions that decrease centralization of power generate better outcomes

of free expression for their citizens, regardless of the existence and nature of constitutionally

mandated rights provisions. To arrive at this conclusion, I argue that disagreements between

branches in governments with evenly balanced powers are much more difficult to resolve, which

substantially decreases the effectiveness of a government’s ability to diminish rights.

The key to addressing this question lies in the linkage between two existing bodies of liter-

ature. The first links the relationship between conflict and efficacy in government. Though it

appears intuitive that highly conflict-stricken governments prone to infighting and disagreement

will be naturally less effective, research out of the U.S. (Mayhew 1991; Krehbiel 1998) and Brazil

(Shugart and Carey 1992; Figueiredo and Limongi 2000) shows that not only is conflict impor-

tant to the effectiveness of government, but so is the intensity of that conflict. Systems designed

to pit strong branches against weak ones are not as doomed to gridlock as once thought. The

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second set of literature concerns the dangers of highly efficacious governments being excellent

breeding grounds for tyranny. The history surrounding the rise of twentieth century fascism

(Loewenstein 1937; Bracher and Gay 1973) details so-called ”militant democracies” that use

their powers to curtail rights to protect the rule of government. In fact, numerous contempo-

rary scholars (Fox and Nolte 1995; Issacharoff and Nagler 2007; Muller 2012) legitimate this

philosophy and believe that not only is it an objective of government, but also an obligation.

The final remaining challenge to address is a methodological one. Up to this point, no

method has been proposed to operationalize the degree of separation of powers in a given

country. While there have been scholarly attempts to quantify the strength of individual

branches of government (Fish and Kroenig 2009; Armingeon and Careja 2007; Feld and Voigt

2003), no study thus far has combined this results into a cohesive index. In order to properly

investigate the relationship between separation of powers and free expression, I propose a new

index to build on these previous studies and create a singular measure of separation of powers.

My analysis hinges on this empirical insight, the Separate Powers Index (SPI), which measures

the differences in the share of power allocated to each of the three branches of government

using criteria from the three previously mentioned comparative studies on individual branch

strength. I then use this new index to compare each nation’s separation of powers to the

level of free expression enjoyed by their citizens. Assuming the normative arguments of many

political philosophers and justice Scalia to be true, the expected hypothesis is that there is

a negative relationship between the value of the index and free expression. All other things

being equal, as the differences in strength between the branches increases and power becomes

more imbalanced, the people’s freedoms should suffer and will show a measurable decline.

What I hope to accomplish in this paper reaches beyond the creation of a new index; I aim to

provide the first empirical account of a relationship between separation of powers and freedom

of expression, a relationship that has been normatively debated for centuries among scholars

and philosophers of constitutional theory.

Normative Framework

Guarantees of free expression are found widely throughout the world’s constitutions. As early as

the 6th century BC, Athenian democracy was one of the first to provide citizens with protections

for free speech (Raaflaub, Ober and Wallace 2007). During the Enlightenment, philosophers

began to resurrect the concept of free speech and argue that it was a necessary condition

for a just society. British Parliament eventually enacted the English Bill of Rights in 1689,

a document that has influenced nearly all of the world’s modern constitutions. The English

Bill of Rights declared ”ancient rights and liberties” - including freedom of speech - during

proceedings of Parliament (Williams 1960). While important, this doctrine was very limited in

its application, being relevant only to speech occurring in Parliament. However, the importance

of this provision is that it is one of the earliest modern examples (1689) of a government

recognizing the value in declaring speech a protected right. Soon after, democratic governments

built off this early provision, implementing their own versions of free speech that applied more

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broadly to all citizens.

During the latter half of the eighteenth century, two of the first nations to declare speech a

protected right for a broader class of citizens were the United States (1789) and France (1789).

The protection of speech in the U.S. Bill of Rights was so highly valued at the time of its

authoring that it is listed in first among the amendments to the Constitution (U.S. Const.

Amend. I). Founding father James Madison wrote in the National Gazette that public opinion

is ”the real sovereign in every free [government]” (Madison 1983). Without such freedoms as

free speech, Madison argues that governments are inherently tyrannical, being ruled only by

the will of the government with no consideration of the will of people. In France, the right to

free speech was given to all citizens in Article XI of The Declaration of the Rights of the Man

and of the Citizen, calling it ”one of the most precious rights of any man” (Spielvogel 2014).

Even still, two hundred years later, John Stuart Mill published On Liberty where free speech is

protected as the most important basic liberty of man, as it is the physical manifestation of free

thought (Mill 1966). Aside from these examples, the concept of free speech has proliferated

wildly internationally over the past two centuries. Of the 126 national constitutions in this

study, 123 mention some free speech guarantee for their citizens. What these countries have

shown is that making a dedicated commitment to protecting free speech is an important priority

for any government. What the Framers of the U.S. Constitution (and many other founding

figures) had to answer was the problem of how to ensure that a tyrannical ruler couldn’t simply

take over and remove those protections.

One important constitutional mechanism that has been often implemented to address this

concern is separation of powers. In John Locke’s original prescription of government, he desig-

nated the need for three separate powers of government to handle the various responsibilities;

part of this design was an explicit separation of legislative and executive power, for fear of a

single body powerful enough to create and enforce any law at will (Locke 1764). Again sixty

years later, Montesquieu created the first true conception of government to feature entirely

separate institutions of power. Unlike Locke, Montesquieu argued for the need to place the

separate powers in entirely different bodies, rather than merely different people (Montesquieu

1777). In his Spirit of the Laws, Montesquieu kept Locke’s executive and legislative powers and

also provided for the existence of a third institution, the judicial power, which at the time was

heralded by French political thinkers as being the most important of all branches (Przeworski

and Maravall 2003). The independence of the judiciary was seen to stand for the moral good of

society and protect citizens from unjust advances by the other two branches. By distributing

power across all of the branches, Montesquieu claimed that this structure provides the ultimate

protection against tyrannical government. In fact, he issued a warning to future nation builders

not to infringe on this vital principle of government. Doing so could risk ”an end of liberty” at

the hands of tyranny (Montesquieu 1777).

Drawing heavily on readings from Locke and Montesquieu, the Framers of the US Consti-

tution, including John Adams, Thomas Jefferson, James Madison, and Alexander Hamilton

wrote extensively about separation of powers in government and its necessity for preventing

tyrannical rule. They argue that in order to protect the people from tyranny, governments must

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have separate institutional powers to constrain legislative action and protect executive freedoms

(Jefferson 1955; Hamilton and Jay 2015b,c,d). Mirroring the question of quis custodiet1, Jef-

ferson’s letter to Madison raises a concern about the implications of the minimal constraints

placed on an unchecked legislature and suggests that a separate body hold the power to restrain

Congress (Jefferson 1955). Protection against tyranny was of the utmost importance to 18th

century Americans and was central to Hamilton’s belief that separate powers provisions were

key to the republican ideal of protecting and promoting the common good (Sellers 2003). For

the founders, it was vital that all powers of government remain separate in order to prevent

one branch from concentrating power and using it against the people. Centuries of political

thought and nation-building have led to the same conclusions that protecting free speech and

establishing separate institutions of power are two of the core tenets to building and maintain-

ing a fair and just society. While the proponents of separate powers have different opinions as

to how best power should be allocated, all rest on the same logic that separation is necessary

to prevent tyranny. Does this logic have merit? It turns out that two important bodies of

contemporary research emerge whose union generates a substantive hypothesis for exploration.

From Battle to Blockage

In 1991, political scientist David Mayher conducted the first large-scale empirical study on

interbranch cooperation and conflict (Mayhew 1991). This work is the cardinal literature on

interbranch relations in American politics and provided the null result : the conclusion that

there does not appear to be any appreciable difference in government performance between

unified and divided government. This largely contrasted with the consensus observation within

the field that divided governments were in fact less efficient than unified government. In the

decade following the study, several explanations and theories were put forth (Kelly 1993, Brady

and Volden 1998, Krehbiel 1998, Jones 2001, among others). I rely on one of these models,

Krehbiel’s (1998) Pivotal Politics model, which is based on the principle that constitutional

systems create pivotal actors in collective action situations. These pivotal players wield large

amounts of power over key steps in the process, called pivots, that influence the progression

towards completing objectives; for example, in the U.S., the Senate filibuster and presidential

veto are both pivots. This often requires governments to obtain larger amounts of overall

support to overcome potential gridlock and avoid what Krehbiel terms the ”gridlock interval”

(Krehbiel 1998).

The importance of Krehbiel’s work is further explored by Binder (Binder 1999), who pre-

sented an argument that we should not only be concerned with the existence of gridlock, but

also that we should be concerned with its strength. These works inform an important dynamic

interpretation of conflict and gridlock, establishing a relationship where as the intensity of

conflict increases, the strength and frequency of gridlock will follow suit. When constitutional

systems create multiple strong actors that may be in conflict with one another, the system lets

1Latin phrase quis custodiet ipsos custodes, translated as ”Who will watch the watchers?” is often offered as

a concern that governments are effectively unchecked and can exercise their power without reprimand.

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”ambition counteract ambition” (Sellers 2003, p. 29). Shugart & Carey’s Presidents and As-

semblies gives another account of this relationship between strong actors and gridlock (Shugart

and Carey 1992); though their analysis focuses on executive-legislative relations, they argue

that allocating more power to executives over the legislative process decreases the incentive to

cooperate and ultimately leads to conflict and government paralysis (decreasing overall efficacy).

To test this hypothesis, Ames provides a discussion on the Brazilian constitution claiming that

its construction in 1988 was perfectly imperfect. It pairs all the factors of dysfunctional gov-

ernment in one system: an exceptionally strong president, a very weak electoral system, and

poor legislative procedures (Ames 2001). The Shugart & Carey hypothesis seems to assert that

the Brazilian constitution should be unable to pass policy agendas due to the president’s high

level of legislative powers. However, Figueiredo and Limongi show that this is not the case. In

their analysis, they find an extremely high passage rate of executive-initiated bills (Figueiredo

and Limongi 2000). Unsurprisingly, their study also reveals a complementary low passage rate

for bills initiated by the legislature. Their research reveals that the office of the president uses

their power to dominate legislative activity and ensure that their policy proposals are never

defeated.

In the case of judiciary powers, Chavez et. al looks at the tendency of courts to degrade

rights of members of the opposition when one group strongly holds control of the government

and is more likely to support rights on all sides when there is a large amount of disagreement

within the government (Bill Chavez, Ferejohn and Weingast 2003). In fact, in these times of

strong disagreement and fragmentation, large amounts of decision-making power fall to the

judiciary in the face of gridlock (see Whittington 2009, Epstein and Knight 1998). In all

of these cases, researchers have shown ways in which governments fail to operate optimally

under intense conflict from within. What is also important to note is that the degree of

intensity, such as the kind produced by more evenly balanced constitutional powers, produces

even more intense gridlock at the cost of damaging a governments ability to effectively legislate

outcomes. In the next section, I will outline why such a system would be unsavory to a

would-be authoritarian regime seeking a vehicle for its tyrannical policies. Though a couple

of scholars have questioned interactions involving all branches (see Vanberg 2000 and Bednar

2005), it is far more common to see literature like many of those described investigating the

relationship between just two branches. While important, these studies can only hope to explain

at most two-thirds of any phenomenon, leaving out the powerful effects that a third branch

has on any outcome. Additionally, the history and literature of separate powers theory are

overwhelmingly qualitative. The concepts at work are ambiguous and initially appear much

more conducive to a qualitative analysis of a few notable case studies. Such a methodology

creates a sample size problem, limiting our ability to generalize about how separation of powers

works to protect freedom of expression in modern governments. The vast majority of national

governments remain untouched by scholars as a result of their being too similar to another

studied nation, too small, or too uninteresting. I propose to address these problems with a

cross-national, empirical study across a large subset of national governments. This will provide

a more thorough understanding of these large-scale phenomena and possibly unearth missed

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findings in nations that had not previously been selected for study.

The Authoritarian Machine

The previous section detailed the consequences of strong separation of powers; namely, that

equally powerful branches of government potentially create fierce gridlock and an overall rela-

tively inefficient system. To an authoritarian dictator, efficiency is paramount. In order to push

tyrannical policies, it takes a well-oiled governmental regime that is willing to embrace your

ideology wholesale and quickly turn plans into actions. These sorts of inner machinations of

tyranny are put on full display in the work of German political scientist Karl Loewenstein, who

wanted to examine and explain the growing spread of fascism throughout Europe and other

parts of the world in the early twentieth century. Publishing a series of articles in the 1930’s,

he outlined a view of government that was defined by its inability to prevent the rise of fas-

cist rule (Loewenstein 1937). In these systems, fascist leaders take advantage of the principles

of free society to espouse their ideology to the masses. The foundational characteristics that

were supposed to strengthen democratic nations were the weak link supporting their demise

(Loewenstein 1937), echoing Joseph Goebbels in stating, ”democracies provide their enemies

with the means to get rid of democracy” (Bracher and Gay 1973, p. 16). Unfortunately,

Loewenstein’s solution to preventing fascism resembled an authoritarian regime in itself: it

required first centralizing all power in the executive branch, followed by use of emergency/war

powers, and finally stripping and restricting citizens’ freedoms of expression, participation, and

assembly (Loewenstein 1937). This form of government was one he coined ”militant democracy”

(Loewenstein 1937). By preventing individuals from freely expressing opinions, the government

can better control the spread of anti-government expression. Hopefully, these measures will

shield the government from enough resistance and allow the government to remain in power to

protect the remainder of the peoples rights. As unorthodox as it initially appears to restrict

some rights in order to protect others, Loewenstein is not alone in this assessment.

Both Fox and Nolte (Fox and Nolte 1995) and Issacharoff (Issacharoff and Nagler 2007)

agree that democratic governments have an obligation to curtail rights and freedoms for means

of self-preservation. This argument is typically made as a better-some-than-none tradeoff; it

is more beneficial for the citizens to have a less than ideal amount of freedom than for them

to have none at all under a fascist regime. Muller (Muller 2012) includes a set of criteria that

legitimizes these practices. These criteria include, among other things, whether proponents

intend to exclude certain factions of the whole people and whether their ideology attempts to

speak on behalf of the people as a whole. In practice, we have seen several examples of these

kinds of restrictions to prevent anti-government uprising; U.S. responses to the attacks in New

York and Washington in 2001 (Michael 2003), forced party dissolution of far-right ideologies

in Belgium (Erk 2005), and Israel’s response to some forms of religiously-motivated violence

(Pedahzur and Brichta 2002) all represent instances of Loewenstein’s model in action that

governments will and should turn militant in order to preserve the peoples democracy. If it

is the ultimate goal of government tp use its efficiency to restrict freedoms for the means of

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pushing tyrannical processes, then the reverse leads us to the conclusion that constraining the

effectiveness of government slows the progression of militant democracies and protects overall

freedoms.

In short, governments need separation of powers as a necessary condition to prevent the rise

of tyranny. This principal of constitutional theory ensures that power is dispersed among mul-

tiple branches to prevent one branch from commandeering the system at the people’s expense.

It is in the nature and best interest of government to utilize its effective powers to restrict the

freedoms of citizens to prevent uprisings and maintain its monopoly of violence. Should any

portion of the government attempt such a move, the other branches are more than equipped

to retaliate, sending government spiraling into a gridlock that drastically reduces its ability

to exert force effectively. Constitutional protections ensuring that governments remain in this

delicate balance between militance and internal conflict are the vehicle that best protect the

freedoms and rights delegated to the citizens. Applying Loewenstein’s insights on the nature

of efficient governments to the previous discussion on how separation of powers can prevent

these dangerous efficiencies from arising, I construct a hypothesis that is empirically testable

and forms the core of my analysis.

Hypothesis

In this section, I aim to propose and support the hypothesis that countries whose constitutions

have stronger separation of powers will ultimately engender greater protection for freedom of

expression. In order to construct a theoretical pathway from constitutional separation of powers

to the prevention of tyranny and protection of freedoms, I outline three key characteristics: (1)

strong separation of powers create equal distributions of power among branches, (2) similarly

equal branches create strong gridlock, leading to less overall efficiency, and (3) less efficient

governments with strong gridlock and more successful at restraining a would-be tyrant’s effective

use of force. I start with a hypothetical example:

Country A has a highly centralized power system, with the executive possessing nearly

all the constitutional power among the three branches. In contrast, country B very evenly

divides power among its three branches. Both nations see the rise of executive leaders with

an ideology in disagreement with personal freedoms. As soon as the leaders are elected, both

leaders immediately push their policy agenda of restricting freedoms of the people, believing it

to be both ideologically beneficial and with the intent of silencing anti-government resistance.

Both legislators and judges in the countries oppose the policy agenda and speak out strongly.

In response, the president of country A removes many of the country’s legislators under a false

notion that they do not represent government interests. When confronted by national judges

with these actions, the president uses the new legislative majority to amend the constitution

and allow judges to be removed at will. By essentially sculpting a new government based around

the executive’s policy agenda, the legislation passes with ease and the people are oppressed.

The president of country B, however, has found it significantly more difficult to advance their

agenda. Upon attempt to remove judges, the legislature freezes the executives military budget.

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In response, the president orders executive agencies to stop enforcing judicial decisions. As a

result of this conflict in the government, no government actions are taken while the conflict

remains in force. The gridlock created by similarly strong branches has prevented a tyrannical

state from forming and protected citizen freedoms.

To test whether or not this is a reasonable hypothesis, I pose two questions about the for-

mation and operation of tyrannical governments. The first is whether there is any possibility

for a balanced, multi-branch government to unified under a single, tyrannical ideology. The

key to the answer, as Loewenstein pointed out, is in the use of legislative processes to restrict

freedoms. Anything which would impede those processes would ultimately prevent a tyrannical

government from forming and restricting the rights of the people. A structural separation of

powers is a provision that achieves this end by strengthening interbranch conflicts which sup-

ports gridlock and prevents the passage of legislation. In a republic government with multiple

branches, there is an inevitable amount of conflict that will occur, and any circumstance that

involves an interaction between political actors across branches with potentially opposing policy

preferences creates some level of conflict. If the level of conflict is small, it is often resolved

quickly and effortlessly. however, if the strength of the conflict is high enough, it will produce

gridlock. When government is gridlocked on a specific policy outcome, no changes to legislation

will occur and the policy objective fails.

In any conflict, the natural tendency is towards a resolution of tension on one side or

the other. However, as the intensity of the conflict increases the likelihood of a resolution

decreases dramatically. A tug-of-war scenario describes this concept as participants continue

to increase their level of effort and the tendency towards resolution decreases. The beauty of

viewing gridlock as a byproduct of separation of powers is that its influence is readily visible

due to its effect on creating conflict between branches. This in turn heavily influences the

ability of governments to erode rights. When we return to a tug-of-war conceptualization

of government conflict, we see centralized power governments resolve conflicts similarly as a

conflict between a professional wrestler and a small child. Alternatively, the more evenly

balanced powers in separate powers governments equalize the competitors and produce conflict

more akin to two similarly strong individuals. The likelihood of (efficient) resolution tells us

that centralized power governments yield exceptionally weak conflicts and governments with a

stronger separation of powers produce significantly stronger gridlock.

The second question of the hypothesis is whether separation of powers and equally balanced

branches can actually protect tyranny. In the pursuit of a particular policy objective, coalition

building and cooperative governance are required to advance the agenda. However, government

actors opposed to the policy will attempt to impede its advancement. If we have, for example,

a legislative body intent on slashing rights for workers and an executive with a policy agenda

to protect those provisions, the result of the ensuing conflict will depend highly on the strength

of the two branches. If this constitutional system provides sole agenda-setting authority to

the executive with veto power and no overriding power to the legislature, it is highly likely

that the executive will see its policy agenda be advanced. However, if the executive does not

possess any veto or agenda-setting power and has all of its cabinet ministers appointed by

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the legislature with no executive nomination, it is more likely to see the legislatures agenda

advanced. Both scenarios feature highly centralized systems, and both saw conflicts with a

very low resistance to resolution. How would we expect this same scenario to proceed in a

separate powers system? If both branches have sufficient levels of power over one another and

are each similarly powerful in their own regard, we would expect the outcome to likely result

in a gridlock and no policy agenda is advanced. With equally powerful branches, the conflict

is highly resistant to resolution and produces a relatively strong gridlock in the government.

Taking these results, we can accept the validity of our hypothesis based on our answers to the

questions that separation of powers is indeed necessary to elicit gridlock and prevent tyranny by

strengthening interbranch conflicts. Centralized power systems tend to produce easily resolved

conflicts and only very rarely will they encounter situations of gridlock.

In summary, the hypothesis I argue is that constitutions with high support for separation

of powers are more effective and preventing tyranny and protecting freedom. This relationship

is illustrated through a complex relationship with the way branches interact and the ensuing

conflicts and gridlock that results from disagreements among policymakers. Not only does this

hypothesis build on previously supported literature and provide yet another normative account

of the role of separation of powers in government, but it also creates a testable framework off

of which to build an analysis. In order to empirically study this relationship across a large

number of countries and constitutions, I construct a system to operationalize separation of

powers using constitutional text data and compare it across extant measures of freedom to

further test the hypothesis and our understandings of how constitutional construction affects

individual freedoms.

Methodology

My analysis investigates the effect that the degree of separation of powers in national constitu-

tions has on freedom of expression in 1262 nations around the world. Quantifying such vague

and typically normative concepts is a difficult challenge, one that - for separation of powers -

has not yet been taken up by current scholarship. This is why I introduce the Separate Powers

Index as the first of its kind. The approach I am taking in operationalizing separation of powers

is to focus in on only powers that are found in constitutions, this excludes any additional pow-

ers that a legislature may grant an executive, for example. Additionally, many authoritarian

regimes also have executive branches that frequently reach beyond the scope of their constitu-

tional duties in practice; those powers are not considered either. The reason for excluding these

additional powers is that constitutions are drafted to represent the foundation and structure of

government. The key element of focus in this analysis is not legislative activity or the nature

of dictators but the effects of decisions made on how this basic structure is designed. For the

dependent variable, freedom of expression is a concept that has gained more traction since the

advent of big data. A quick search will yield several results for existing democracy indices and

2As the analysis is based on constitutional text data, I specifically exclude all countries with unwritten

constitutions.

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measures of free expression that are readily available. For my analysis, I will be using the free

expression index from the Varieties of Democracy (V-Dem) dataset. Before a further discussion

on the free expression index, I will move through the setup and construction of my SPI.

This paper introduces a new indicator that seeks to objectively measure the level of cen-

tralization of power prescribed by national constitutions. All of the nations in the study are

known to have three functioning branches of government - legislative, executive, and judiciary

- and the index relies on such. The approach I take to measure centralization of power is to

first measure the strength of each of the three branches and subsequently gauge the level of

disproportionality between these strengths. The first step in this process is determining how to

construct the sub-indicators to represent the strength of each branch. Fortunately, the strength

of individual branches has been address extensively by other indices. The criteria and scoring

used to construct the final index stems directly from their prior research.

Legislative Strength

In 2009, Fish and Kroenig published The Handbook of National Legislatures. In it, they develop

the Parliamentary Powers Index, a mean of 32 binary variables on legislative power (Fish and

Kroenig 2009). Expert surveys with an average of five respondents per country were used to

construct the index with variables in things such as passing veto-proof legislation and whether

individual legislators are immune from prosecution. On the backs of methodological criticisms

such as those by Desposato (Desposato 2012) that the reality of parliamentary powers is that

they are not created equally, Chernykh, Doyle, and Power (Chernykh, Doyle and Power 2017)

created a weighted measure using another expert survey of 296 political scientists. The results

of the expert reweighted Fish-Kroenig index are then divided by the maximum score to yield a

value between zero and one, which is then used herein to represent strength in the legislative

branch.

Executive Strength

Multiple measures of executive and presidential power rely on the system put forth by Shugart

and Carey (Shugart and Carey 1992). Two valid measures can be found in Frye et. al (Frye

2000) and Armingeon and Careja (Armingeon and Careja 2007). One of the largest differences

between the two measures is Frye’s use of a two-dimensional model of presidential power, both

legislative and non-legislative powers, where Armingeon and Careja present a list of constitu-

tional powers. A validity analysis including both measures provided by Fortin (Fortin 2013)

shows little association between indicators in the Frye model and calls into question both va-

lidity and reliability of the model for empirical use. Following an analysis of the 29 indicators

of the Armingeon and Careja model, Fortin identifies 10 core executive powers produced by

national constitutions. The original Armingeon and Careja used a ternary scoring system for

each of the indicators, assigning a score of 1 if the president possesses sole authority, 0.5 if the

power is shared with another branch, and 0 if the power is not delegated to the president. Seven

of the ten core indicators were directly mapped to variables from the Comparative Constitu-

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tions Projects dataset Characteristics of National Constitutions (Elkins, Ginsburg and Melton

2014). The remaining three indicators were hand-coded using constitutional text provided by

the Constitute Project. The executive strength sub-index is then computed as the mean of

these ten core indicators of executive power, returning a value between zero and one.

Judicial Independence

Of the measurements of de jure judicial independence, Feld and Voigt (Feld and Voigt 2003),

La Porta et. al (La Porta et al. 2004), and Keith (Keith 2002)/Apodaca (Apodaca 2003)

all provide substantial scholarly insight. An overview and comparison of these measures is

included in Rıos-Figueroa and Staton (Rıos-Figueroa and Staton 2012). For the purposes of

this analysis, the Feld and Voigt model is used as it is the only cross-sectional model to include

judge appointment procedures and to provide a continuous value to give greater parity between

the set of nations. The Feld and Voigt model contained twelve indicators scored from 0 to 1

designed to operationalize judicial independence. For application in this index, two of the twelve

(relative judicial salary and case allocation policy) were not included as those measures were

found to be highly determined by non-constitutional law. The remaining ten measures were

paired with variables taken from Comparative Constitutions Project data (Elkins, Ginsburg

and Melton 2014). The indicator for judicial independence is reported as the mean of the ten

sub-indicators for all 126 countries that is between zero and one.

Constructing A New Index

To approach the question of creating a new index aimed at measuring the amount of dispro-

portionality between branches of government, the following requirements were created: (1) the

index must be independent of the overall strength of a government (a government with three

equally weak branches must equal another with three equally strong ones), (2) the index must

yield equal results regardless of any permutation of branch scores (the calculation of the index

is independent of which branch has which strength, only on the sub-indicator values them-

selves), and (3) the index must be scaled between zero and one, 0 representing a completely

balanced government and 1 representing a government with all of the power centralized in a

single branch.

To satisfy the first requirement that the index is independent of overall strength, each of

the three sub-indices are scaled to be a percentage of total power, represented as the sum

of executive, legislative, and judicial strength. For the purposes here, executive strength is

denoted e with the scaled score denoted as e. Legislative and judicial strength follow the same

convention using l and j, respectively.

e =e

e + l + jl =

l

e + l + jj =

j

e + l + j

Requirements two and three are met by modeling the SPI after the Gallagher least squares

index (denoted Lsq). In his article on disproportionality of electoral systems, Michael Gallagher

12

presented a new index relating the share of seats allocated to political parties to the share of

the total vote received by the party (Gallagher 1991).

Lsq =

√√√√1

2

n∑i=1

(si − vi)2

Where si is the share of seats allotted to party i and vi is the vote share received by party i for n

parties. The result of the index is therefore minimized when the proportions are equal. We can

also understand vi to be the proportion of seats received by party i in a perfectly proportional

system with Lsq = 0. Using this, we can create an alternative representation as

Lsq =

√1

2

∑(actual share− expected share)

2

In measuring disproportionality of government power, the actual share is represented by the

scaled branch score and expected share of power in a perfectly balanced system for each branch

is set at one-third.

SPI =

√1

2

∑(relative branch strength− 1

3

)2

Substituting the scaled branch scores across the sum gives the following

SPI =

√√√√1

2

[(e− 1

3

)2

+

(l − 1

3

)2

+

(j − 1

3

)2]

Upon squaring each term and taking advantage of the fact that e + l + j = 1, the simplified

form of the index is

SPI =

√1

2

(e2 + l2 + j2 − 1

3

)In order to correctly scale the index between zero and one, the formula was multiplied by

√3.

The form of the index used in this paper is

SPI =

√3

2

(e2 + l2 + j2 − 1

3

)At first glance, the distribution of the SPI across countries produces several interesting

results. My first interest was investigating the seemingly high score for the United States

(0.336). Theoretically, we may look at the United States Constitution, which delegates very

few constitutional powers to the executive and instead leaves them up to Congress to exercise its

legislative authority to grant powers to other government agencies. In line with this assessment,

the index reveals a share of just 12.4% of overall power allocated to the executive, with 50.7

and 36.8 percent to the legislative and judiciary branches, respectively.

13

0.0 0.2 0.4 0.6 0.8 1.0

Separate Powers Index

Figure 1: A comparison of the Separate Powers Index for constitutions around the world, where

0 represents perfect balance and 1 represents complete dictatorship.

14

Drawbacks of the SPI

At this moment, one notable drawback of the SPI exists. Since each of the sub-indices were

constructed using criteria that were developed and coded by different authors do measure

different phenomena, the possibility exists that these scores are incommensurable. While this

is a valid critique, the index has its merits in reflecting what we see in real national examples.

Using Denmark as an example, which places extensive power in the hands of its parliament

(raw legislative score of 0.775) and almost no power to the executive (raw score of 0.222) or

judiciary (raw score of 0.162). On the SPI, Denmark ranks most imbalanced with a score

of 0.505. It is important to note that this score is nowhere near the maximum score of 1.0

representing a total dictatorship. In fact, it may be said that it is a strong argument in favor

of constitutional government that at face value, it paints a picture far from totalitarianism. On

the other hand, the Brazilian government ranks highest on the scale. Title IV of the Brazilian

constitution lists the formal powers and duties of each of the branches. With fairly balanced

institutions across the legislative (0.601), executive (0.611), and judiciary (0.599), the Brazilian

constitution yields an SPI of just 0.006. What distinguishes Brazil from a constitution like the

United States is almost solely in their treatment of the executive. Whereas the U.S. president

is fairly limited in powers by the constitution, Article 84 of the Brazilian constitution lists 27

powers that are granted exclusively to the president. What these values reflect is not intended

to measure the strength of democracy, but merely just a picture of the balance within these

national governments.

Freedom of Expression

To obtain values for free expression, I use data from 2008 provided by the Varieties of Democracy

Project in V-Dem v8 (Coppedge et al. 2018). In this dataset, variable v2x freexp altinf

provides an index of free expression and access to alternate information by combining factors

on media censorship, journalist harassment, media bias, self-censorship, critical nature of the

media, range of perspectives in the media, male and female freedom of discussion, and freedom

of academic and cultural expression (Coppedge et al. 2018). Due to the large left skew in the

dependent variable, the models rely on a log-transformed measure3 of free expression to better

approximate a normal distribution in the dependent variable.

3by the function x′ = log(1 − x)

15

0

5

10

15

20

0.25 0.50 0.75 1.00

V−Dem Free Expression

Cou

nt (

No.

of C

ount

ries)

Figure 2: V-Dem free expression distribution around the world

Covariates

In order to properly control for spurious factors, I focus on four key classes of control variables:

(1) freedom of expression, (2) constitutional/national history, (3) socioeconomic factors, and

(4) military. In order to present the case that merely instituting a right in a constitution is

insufficient to ensure its protection, I use a binary variable based on the presence of clauses

protecting freedom of expression based on the same text data used to construct the SPI (Elkins,

Ginsburg and Melton 2014). In reality, nearly every modern country includes a protection for

free expression in its constitution. In this analysis, 123 of the 126 countries studied had some

form of free expression clause present. This lends some credibility to the argument that there

is an insignificant relationship between rights in a document and rights to the people.

The second class of rights I include are those surrounding constitutional/national history.

These are factors that may potentially influence the structure and writing of a national con-

stitution, or that may influence the underlying philosophies about society and governance that

dictate the important values of that society’s government. Taking into account the systems that

preceded a country’s constitution, I control for a history of British colonization in the coun-

try based on data provided by Centre d’Etudes Prospectives et d’Informations Internationales

(Mayer and Zignago 2011). In addition, many constitutions often iterate over other existing

constitutions. I proxy for this influence, as well as any compounding effects of highly stable

constitutions by using constitutional age, calculated as the number of years between the first

institution of the constitution and the year 2008 (Elkins, Ginsburg and Melton 2014). Lastly,

in order to control for any network effects of influence of neighboring ideologies surrounding

governance and constitutional design, I include two binary variables controlling for whether a

country is located in either of the Americas (or not), or whether it is located in Europe (or

16

not).

The third class controls for a variety of socioeconomic factors that are known to be highly

correlated with several measures of democratic health. The first of these is religion (Maoz

and Henderson 2013), which places certain norms on both individual and societal behaviors

and in some cases, such as more theocratic governments, governmental actions. Secondly,

I control for two important types of inequality that are intimately linked with individuals’

abilities to exercise themselves freely. Both income (Group 2018) and gender (Programme 2018)

inequality affect which individuals in a society are able to adequately employ their freedoms,

while overall economic measures like personal income and access to technology (Group 2018)

affect the population as a whole in determining people’s ability to access alternative sources of

information, freely move, etc.

The fourth class of control variables are related to a country’s military behavior. As these

forces are often the ones used by authoritarian regimes to enforce their policies, I look at

military spending as a percentage of GDP (Group 2018). I also look at the effect war might

have on freedom by controlling for the number of armed conflict events the country engaged in

during the years 2006-2008 (Palmer and McManus Forthcoming). However, in order to avoid

the increase in military spending due to an ongoing conflict involving a particular country, I

also include an interaction term between military spending and military events. Effectively,

this controls for countries that are actively spending large portions of their money on military

without a high demand for military intervention in an active conflict.

A Free expression clause (binary)

B Constitutional/National History

1 British colonization

2 Constitutional age

3 North/South American geography (binary)

4 European geography (binary)

C Socioeconomic Factors

1 Religion

2 Income inequality

3 Gender inequality

4 National income

5 Technology access

D Military

1 Military spending

2 Military events

3 Military spending & events interaction term

17

Findings

To test the hypothesis that separation of powers provisions help engender free expression, I

construct a linear regression model of free expression against the SPI and controls. This will

allow me to analyze the existence and nature of a direct relationship between separation of

powers from the text data and freedom of expression in the presence of control factors. The

final model included only the significant controls for the two binary geographic variables, mili-

tary spending, national income, military events, the interaction term, as well as the binary for

freedom of expression clauses, all other controls were insignificant on their own and had a neg-

ligible effect on the model as a whole (p ± 0.005). Due to the transformation of the dependent

variable, the regression coefficients are opposite the true relationship to free expression (i.e. a

decrease in transformed DV is an increase in the true DV).

18

Table 1: Multivariate linear regression model. Table generated using R package stargazer

(Hlavac 2018)

Dependent variable:

Freedom of Expression

Separate Powers Index 1.607∗∗

(0.716)

Free expression clause −0.055

(0.302)

European country −1.067∗∗∗

(0.186)

North/South American country −0.497∗∗∗

(0.174)

Military spending 0.243∗∗∗

(0.061)

National income −0.00003∗∗∗

(0.00001)

Military events 0.040∗

(0.020)

Military spending & conflict interaction term −0.015∗∗

(0.006)

Constant −1.790∗∗∗

(0.329)

Observations 126

R2 0.617

Adjusted R2 0.590

Residual Std. Error 0.683 (df = 117)

F Statistic 23.515∗∗∗ (df = 8; 117)

Note: ∗p<0.1; ∗∗p<0.05; ∗∗∗p<0.01

19

The results from the multivariate model support the hypothesis. According to the model,

there is an inverse relationship between the degree of separation of powers and free expression,

significant to p = 0.02. The inverse relationship supports the hypothesis that as constitutional

powers become more imbalanced, there is a subsequent decrease in free expression. In order

to give the model a more substantive interpretation, I have used these results to predict free

expression by holding all other variables fixed and varying the SPI.

0.5

0.6

0.7

0.8

0.9

1.0

0.0 0.2 0.4

Separate Powers Index

Pre

dict

ed le

vel o

f Fre

e E

xpre

ssio

n

Figure 3: Predicted free expression outcomes from changing constitutional separation of powers

(95% confidence interval shaded)

The model also has an R2 value that is quite high at 0.590, indicating that the whole model ac-

counts for 59% of the variation in the dependent variable. These results illustrate the downward

trend that increasing power imbalance has on free expression. The fact that this relationship

exists, is inverse, and is statistically meaningful are all quire exciting findings. What is even

more enticing are the substantive effects of a change in separation of powers across the en-

tire spectrum of constitutions used in the analysis. As shown in Figure 4, by simulating the

expected outcome of freedom of expression in the multivariate model with all controls held

at their means, freedom of expression drops 17.8% when moving from the strongest possible

separation of powers to the weakest.

20

●

●

[0.835, 0.903] [0.535, 0.828]

0.00

0.25

0.50

0.75

1.00

Minimum Maximum

Separate Powers Index

Pre

dict

ed L

evel

of F

ree

of E

xpre

ssio

n

Figure 4: Simulated free expression outcomes in the cases of the minimum (left) and maximum

(right) SPI, with 95% confidence intervals

Several of the control variables were correlated with freedom to a significant degree. Both

of the binary variables representing whether a country was geographically located in Europe

or the Americas were significantly linked to an increase in freedom. National income, which

measures the average income per capita, was also significantly related to freedom. As national

income rises, so does free expression. Since free expression is defined by things such as access to

different types of information, populations with high average income have a lot more resources

at their disposal to obtain and distribute information on a widespread level. As expected,

increased military spending is also connected to decreased freedoms. Oppressive regimes have

classically used military enforcement as one of the primary mechanisms for suppressing people’s

exercise of free expression. The interaction term in the model also gives greater context to the

impact of military spending. The model shows that countries that exhibit high levels of military

spending during a period where they experience a greater number of armed conflicts take less of

a hit to freedom. This finding points suggests that regimes that increase their military spending

when it may not be necessary tend to damage freedoms of citizens, as opposed to increasing

spending when war or other situations demand it. As Scalia’s original argument would have it,

there was not a significant relationship between the existence of a free expression clause and

the protection of free expression. As we can see in Figure 5, there is no relationship and any

difference is very likely spurious.

21

●●

[0.69, 0.904] [0.812, 0.857]

0.00

0.25

0.50

0.75

1.00

Without Provision With Provision

Constitutional Provisions for Free Expression

Pre

dict

ed L

evel

of F

ree

Exp

ress

ion

Figure 5: Simulated free expression outcomes in the case of no constitutional free expression

(left) and with constitutional free expression (right), with 95% confidence intervals

Conclusion

Though separation of powers is a facet of constitutional theory that has long been a normative

concern, I have presented an argument and methodology that it can and should also be studied

empirically. Previous political science scholarship has highlighted the importance of interbranch

relations, particularly as it relates to the nature of government gridlock and the relative strength

between branches. As we continue to study both the American as well as foreign political

systems, this literature reminds us to return to the documents that grant these institutions

power in order to get more complete context into interbranch relations. Scholars have also

called attention to the operation of authoritarian governments and their necessity for highly

efficient governments. In light of these two major findings, I present another interpretation of

separation of powers as a driver and reinforcer of gridlock between equally powerful branches

of government. Based on textual data of the world’s constitutions, a first empirical analysis

has shown that merely including a right such as freedom of expression in a constitution is

insufficient for it to be properly protected and enjoyed. If we are interested in creating strong

systems of government to protect individual rights, the ability to create institutions of power

that are separate and equal is paramount. Finally, this analysis builds on the work of other

scholars interested in the quantification of indicators of government strength and performance.

By combining measures of individual branch strength, the Separate Powers Index provides a

singular measure to the overall balance of power in national constitutions. The long-term hope

is that this index can be used in the future to help get a clearer picture about how separation

22

of powers may affect any number of government objectives.

Acknowledgements

Special thanks to the Center for American Politics and Public Policy (CAPPP) at the University

of Washington. Thanks also to my advisors, Rebecca Thorpe and Emma Rodman, for their

help, guidance, and suggestions on drafts and presentations of the project, and the CAPPP

research fellows, whose feedback and support have been invaluable.

23

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