Libertarian Separation of Powers

Aziz Huq

The Constitution’s distribution of power among three branches of the federal government is valued because it aims to produce some bundle of valuable social or public goods such as democracy, rights, or welfare. This essay examines the interaction between constitutional structure and those goods a libertarian might pursue. Analyzing the options for both a constitutional designer and a constitutional interpreter, it suggests that first-order preferences over liberty fail to translate into structural design maxims in any mechanical or predictable way.