Baron De Montesquleus in 1748
Introduction Of the doctrine of the separation of powers, so familiar to readers of Supreme Court opinions, the Constitution says not a word.
In this it sets itself apart from the constitutions of Virginia, Massachusetts, and New Hampshire (1784), whose pointed and unqualified language testifies to a general acceptance of “this invaluable precept in the science of politics” (Federalist, no. 47).
Yet the framework of government outlined in the Constitution of 1787 presupposes the separation of powers, gives expression to it, and in so doing further refines the meaning of the doctrine. Much of the controversy over drafting and ratification turned on this question of meaning.
At issue was not whether the proposed Constitution embodies the separation of powers to some extent (few denied that), but whether its separation is adequate, whether the purposes for the sake of which separation of powers is indispensable are indeed well served by the peculiar manner in which the Constitution effects and compromises that separation. By the time the new government was established, the terms in which much of the debate had been conducted had themselves been redefined and clarified. The Constitution, far from being a dubious exemplar of the separation of powers, became a classic instance of the doctrine it never mentions.