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Separation of Powers
"Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence."
Robert Frost
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Separation of Powers

Justice Breyer Concurrence
April 18, 1995
Seal Of The Supreme Court
Concurrence excerpt:

The majority provides strong historical evidence that Congress lacks the power simply to reopen, and to revise, final judgments in individual cases. The Framers would have hesitated to lodge in the legislature both that kind of power and the power to enact general laws, as part of their effort to avoid the "despotic government" that accompanies the "accumulation of all powers, legislative, executive, and judiciary, in the same hands."

... At the same time, because the law before us both reopens final judgments and lacks the liberty protecting assurances that prospectivity and greater generality would have provided, we need not, and we should not, go further — to make of the reopening itself, an absolute, always determinative distinction, a "prophylactic device," or a foundation for the building of a new "high wal[l]" between the branches. Indeed, the unnecessary building of such walls is, in itself, dangerous, because the Constitution blends, as well as separates, powers in its effort to create a government that will work for, as well as protect the liberties of, its citizens.

... As the majority invokes the advice of an American poet, one might consider as well that poet's caution, for he not only notes that "Something there is that doesn't love a wall," but also writes, "Before I built a wall I'd ask to know/ What I was walling in or walling out." Robert Frost, MENDING WALL

[Editor's Note -- The majority opinion written by Justice Scalia concludes: "Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: Good fences make good neighbors."]



Poem excerpt:

MENDING WALL, Robert Frost

He only says, "Good fences make good neighbors."
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
"Why do they make good neighbors? Isn't it
Where there are cows?
But here there are no cows.
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn't love a wall,
That wants it down."


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