This episode explores the theory and practice of separation of powers, starting with a timely crisis: Hungary’s parliament has effectively dissolved its Constitutional Court’s review power, part of a global pattern of democratic backsliding tracked by the V-Dem Institute. The conversation begins with Montesquieu, whose 1748 The Spirit of the Laws famously argued that liberty requires separating legislative, executive, and judicial powers—but who mistakenly believed Britain had achieved this. In reality, 18th-century Britain fused powers, with the Crown appointing judges and ministers sitting in Parliament. Yet Montesquieu’s error became foundational: the American founders built the system he thought he described. John Locke preceded him with a three-power model (legislative, executive, federative) that folded courts into the executive. James Madison operationalized the theory in Federalist 51, arguing that institutions must channel self-interest into equilibrium. Modern thinkers like Robert Dahl expanded the concept beyond formal branches to include civil society, media, and political competition. Steven Levitsky and Daniel Ziblatt distinguished hard constitutional guardrails from soft norms of toleration and forbearance—and showed that authoritarians attack the latter first. The episode compares presidential systems (US, with its dual legitimacy problem) to parliamentary systems, and notes troubling data: the US Supreme Court expanded executive power in 73% of relevant cases in the latest term.
#3210: How Montesquieu Got Britain Wrong
From Montesquieu’s mistake to Hungary’s crackdown—how checks and balances actually work.
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New to the show? Start here#3210: How Montesquieu Got Britain Wrong
Hungary's parliament just passed a law that effectively dissolves the Constitutional Court's power to review legislation. Critics are calling it the final brick in a wall that's been under construction since 2010 — the complete dismantling of checks and balances. And they're not alone. The V-Dem Institute's latest report tracked democratic backsliding in at least eighteen countries, seven of which have experienced what they call full autocratization since 2010. So Daniel sent us a prompt about the concept of separation of powers — how different democracies implement it, why checks and balances matter, and who the theorists are that built the intellectual framework. Feels like the right moment for this conversation.
It really does, because what's happening in Hungary isn't some abstract constitutional theory seminar — it's the immune system of a democracy shutting down in real time. And the thing is, most people think they know what separation of powers means. Three branches, each does its own thing, nobody steps on anyone else's lawn. That's the Schoolhouse Rock version.
The version where the bill is just sitting on Capitol Hill feeling lonely.
The reality is messier and more interesting. Separation of powers isn't about keeping branches apart — it's about forcing them to collide in productive ways. The overlap is the point. The veto, judicial review, impeachment, confirmations — these are all mechanisms where one branch reaches into another's territory. That's not a bug.
Where do we start? With the French aristocrat who got it wrong?
We absolutely start with the French aristocrat who got it wrong. Charles-Louis de Secondat, Baron de Montesquieu, published The Spirit of the Laws in 1748. And he gave us the line that basically every high school civics class eventually paraphrases: power should be a check to power. He argued that when legislative, executive, and judicial powers are united in the same person or body, there is no liberty. Because the same monarch who makes tyrannical laws can execute them tyrannically.
Which sounds obvious now but was genuinely radical in 1748.
You have to remember, he was writing against the backdrop of French absolutism. Louis the Fourteenth's model — l'état, c'est moi — was still the default assumption about how you ran a country. Montesquieu looked across the Channel and said, look at Britain, they've figured this out. They've divided power so nobody can accumulate enough of it to become a despot.
Except he got Britain wrong.
He got Britain spectacularly wrong. He described a clean separation where the monarch executed, Parliament legislated, and the courts judged independently. But eighteenth-century Britain didn't work that way at all. The Crown appointed judges and could dismiss them. Ministers sat in Parliament — the executive was drawn from the legislature. It was a fusion of powers, not a separation. What Montesquieu was really observing was a system where different social classes — the Crown, the aristocracy, the commons — each had a veto over the others. He mistook class balancing for institutional separation.
Which is a pretty significant misreading of the thing you're holding up as the model.
It is, but here's the fascinating part — it almost doesn't matter that he got Britain wrong. His normative argument was so powerful that it took on a life of its own. The American founders read Montesquieu and said, we're going to build the system he thought he was describing. They took his prescription and made it into architecture. And that brings us to the second major theorist who actually predates Montesquieu — John Locke.
Locke's Second Treatise, 1689.
Locke distinguished three powers too, but they weren't the three we know. He had the legislative, the executive, and what he called the federative power — foreign affairs, basically. War and peace, treaties, alliances. The judiciary wasn't a separate branch for Locke. It was folded into the executive. So when we credit Montesquieu with inventing the modern separation of powers, the specific innovation was pulling the judiciary out and making it a co-equal branch. That was his move.
That move is arguably the most important institutional innovation in modern democratic theory.
It really is. An independent judiciary that can tell the executive no — that's not a natural arrangement. Throughout most of human history, the guy with the army also got to decide what the law meant. Creating a separate body that can say the law means something different, and having the executive actually comply — that's a civilizational achievement.
Montesquieu gives us the blueprint, Locke gives us the precursor, and then Madison operationalizes it.
James Madison, Federalist Number Fifty-One, 1788. And this is where the theory gets its most practical and, frankly, its most cynical articulation. Madison wrote, "Ambition must be made to counteract ambition." His insight was that you can't design institutions assuming people will be virtuous. You have to assume they'll pursue their own interests, and then build a machine that channels that self-interest into a stable equilibrium. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. He's basically saying: design for the worst version of human nature and you'll be fine.
The original defensive pessimism.
And Madison's practical contribution was the idea of overlapping powers. The president can veto legislation, but Congress can override the veto. The president appoints judges, but the Senate confirms them. Congress can impeach, but the Supreme Court presides. Every branch has a tool to block the others, but no single branch can govern alone. It's designed to be frustrating.
Which brings us to the modern critics who say it's too frustrating — that the American system produces gridlock while parliamentary systems with fused powers can actually govern.
That critique goes back at least to Woodrow Wilson, who wrote Congressional Government in 1885 arguing the American system was inefficient compared to Westminster. But the counter-argument is that gridlock is sometimes the point. When the country is deeply divided, the system should make it hard for a narrow majority to ram through transformative changes. The question is where you draw the line between healthy friction and paralysis.
That line keeps moving.
Which is where the more recent theorists come in. Let me jump to Robert Dahl. In 1971, he published Polyarchy, which reframed the whole conversation. Dahl argued that separation of powers isn't just about three branches of government. It's about multiple centers of power throughout society. Independent media, interest groups, labor unions, civil society organizations, competing political parties — all of these create a dispersed power structure where no single actor can dominate. For Dahl, the formal constitutional architecture matters less than whether there are real alternatives and real contestation.
He's saying the constitution is necessary but not sufficient.
You can have a beautifully designed separation of powers on paper and still live in an autocracy if there's no independent press, no civil society, no genuine political competition. The branches check each other formally, but the informal checks — public opinion, investigative journalism, protest movements — those are what give the formal checks their teeth.
Which is basically the argument Steven Levitsky and Daniel Ziblatt made in How Democracies Die in 2018.
And this is where the theory gets urgently practical. Levitsky and Ziblatt's core argument is that separation of powers works through two kinds of guardrails. There are the hard guardrails — the constitutional text, the laws, the formal institutional checks. And then there are the soft guardrails — the unwritten norms of mutual toleration and institutional forbearance. You don't use every power you technically have. You don't impeach political opponents just because you disagree with them. You don't pack courts just because you can. You don't refuse to accept election results just because you lost.
The norms are the operating system and the constitution is the hardware.
And their argument — which has proven distressingly predictive — is that the soft guardrails fail first. Authoritarian-leaning leaders start by testing norms, not laws. They attack the press verbally before they start censoring it. They question judicial legitimacy before they start ignoring rulings. They accuse the electoral system of fraud before they start manipulating it. And by the time they're breaking laws, the norms that would have mobilized opposition have already been eroded.
You can see this pattern in multiple countries now — not just Hungary, but Turkey, Venezuela, increasingly in parts of Central and Eastern Europe. The playbook is consistent.
It's remarkably consistent. But let me pull us back to the theoretical lineage for a moment, because there's one more thinker worth mentioning — Juan Linz. In the 1990s, he wrote a devastating critique of presidential systems, arguing they're inherently prone to breakdown because they create dual democratic legitimacy. Both the president and the legislature can claim to speak for the people, and when they clash, there's no mechanism to resolve it except a constitutional crisis. Parliamentary systems, by contrast, fuse executive and legislative legitimacy — if the prime minister loses parliamentary support, they fall and you get new elections. The crisis resolves itself.
Which is basically the argument that parliamentary systems are more stable because they bake the conflict resolution into the design.
And the empirical evidence is mixed but suggestive. Presidential systems have collapsed into authoritarianism more often than parliamentary ones, particularly in Latin America and Africa. But you also have counter-examples — the US has survived for over two centuries, Costa Rica is stable, Uruguay functions well. So it's not destiny. But Linz's point about dual legitimacy is important for understanding why some systems break and others bend.
That's the theory. Let's talk about how this actually looks in practice. Because when you survey democracies around the world, what's striking is how differently they implement these ideas.
The variation is enormous. Take the American presidential system first, since it's the most famous example and the one people tend to think of as the template. Strict formal separation — the president can't sit in Congress, cabinet secretaries can't be members of Congress, the executive is elected independently of the legislature. But then you have all these overlapping powers. The Brennan Center just published an analysis in June 2026 showing that in the most recent Supreme Court term, the Court issued rulings that expanded executive power in seventy-three percent of cases involving presidential authority.
Seventy-three percent. That's not a random distribution.
It's not. And it raises a serious question about whether the judicial check on the executive is functioning as designed, or whether the Court is effectively becoming a partner in executive aggrandizement. The theory says the judiciary should constrain the executive. The data suggests something more complicated is happening.
Then you have the flip side — congressional abdication. Congress hasn't formally declared war since 1942, despite the US being involved in military conflicts almost continuously. The power to authorize military force has effectively migrated to the executive.
That's the thing about separation of powers — it only works if each branch actually wants to use its powers. A legislature that prefers to avoid hard votes and let the president take the heat isn't being overpowered. It's voluntarily surrendering its authority. That's not a constitutional failure. That's an incentive problem.
Which is a nice segue to the German model, because they designed their system with exactly that problem in mind.
Germany's Basic Law of 1949 is one of the most carefully engineered constitutions in history, precisely because it was written by people who had watched the Weimar Republic collapse into Nazism. They were intensely aware of how democratic institutions can be hollowed out from within. So they built in several distinctive features. The constructive vote of no confidence means the Bundestag can't just fire a chancellor — it has to simultaneously elect a replacement. No power vacuums. No negative majorities that can tear down a government without building one.
Then there's the Federal Constitutional Court.
The Bundesverfassungsgericht is arguably the most powerful constitutional court in any democracy. It can ban political parties — it banned the Socialist Reich Party in 1952 and tried to ban the far-right NPD in 2017, though it ultimately ruled the NPD was too marginal to pose a real threat. In 2025, the Court struck down a law that would have allowed the government to borrow more for climate spending, ruling it violated the constitutional debt brake. That's the judiciary directly constraining the legislature's fiscal policy choices.
Which raises an interesting democratic question. If elected representatives decide they want to spend money on climate policy, and an unelected court says no, is that democratic?
It's the counter-majoritarian difficulty in its purest form. The German Court's answer would be that the constitution itself was democratically adopted and the debt brake was democratically enacted, so the Court is enforcing democratic choices made at a higher level against a temporary majority that wants to deviate from them. Whether you find that convincing probably depends on whether you think the debt brake was a good idea in the first place.
Covering the covers.
But the deeper point is that Germany's system works because there's broad elite consensus around the legitimacy of the Constitutional Court. Politicians grumble about rulings, but they comply. The norm of compliance is strong. In Hungary, by contrast, Viktor Orbán's Fidesz party simply rewrote the constitution to neuter the court. Same institutional architecture on paper, completely different outcome because the political culture was different.
Let's talk about South Africa, because their post-apartheid constitution is fascinating in this context.
The 1996 South African constitution created one of the most expansive bills of rights in the world and a Constitutional Court with muscular powers. The Court can order the executive to implement policies — it's not limited to striking down laws. The most dramatic example was in 2021, when the Court ordered the government to arrest Omar al-Bashir, the former Sudanese president, under an International Criminal Court warrant. Al-Bashir had been in South Africa for an African Union summit, and the executive let him leave.
In violation of a domestic court order.
In direct violation. The Constitutional Court ruled the government had acted unlawfully and had a constitutional duty to arrest him. The executive stalled for eighteen months. Eventually, there was some compliance, but the episode exposed the fundamental limit of judicial power — the Court can issue rulings, but if the executive controls the police and refuses to act, the ruling is just words on paper. The South African case shows that separation of powers requires not just formal independence but enforcement capacity.
South Africa has another interesting feature — the Public Protector, which is an independent constitutional office that can investigate executive misconduct. It's a kind of auxiliary check that doesn't fit neatly into the three-branch model.
That's part of what Dahl was getting at with polyarchy. The more centers of power you have, the harder it is for any one actor to capture the whole system. South Africa's Public Protector, ombudsman offices in Nordic countries, parliamentary budget offices that independently score legislation — these are all innovations that add friction to the exercise of power. They're not in Montesquieu, but they're in the spirit of what he was arguing for.
Then there's the Westminster model, which is basically the opposite of the American approach.
The executive sits in Parliament and controls the legislative agenda through party discipline. The prime minister is not separately elected — they're the leader of the majority party in the House of Commons. In theory, Parliament checks the executive. In practice, if the government has a solid majority, Parliament is a rubber stamp. The real checks come from elsewhere — an unelected upper house, an independent judiciary, a free press, and the threat of the next election.
Those checks are weakening, particularly in the UK.
The Henry the Eighth clause problem is the canary in the coal mine. Henry the Eighth clauses are provisions in legislation that allow ministers to amend primary legislation using secondary legislation — essentially, the executive can rewrite laws without going back to Parliament. According to the House of Commons Library, their use has increased three hundred forty percent since 2010. During the 2022 to 2025 period, the government used them extensively for everything from Brexit adjustments to pandemic response.
Parliament is voluntarily handing the executive a tool to bypass Parliament.
Which is Madison's nightmare scenario. The branch that's supposed to check the executive is actively empowering the executive to ignore it. And the justification is always efficiency — Parliament is too slow, government needs to move fast, the world is complex. All of which may be true. But the cumulative effect is a steady migration of power from the legislature to the executive, with no formal constitutional change.
Which brings us back to Hungary, because that's the end state of this process when there's no meaningful opposition to stop it.
Hungary is the case study in how a determined majority can dismantle separation of powers from within. Since 2010, Fidesz has used its two-thirds parliamentary majority — which it won with about forty-five percent of the vote, thanks to electoral rules it then proceeded to rewrite — to systematically hollow out every check. They rewrote the constitution. They packed the Constitutional Court with loyalists and then expanded it to add more loyalists. They created a new National Judicial Office that controls judge assignments, effectively ending judicial independence in the lower courts. They took over public broadcasting, then private media through regulatory pressure and selective advertising. And now, in June 2026, the parliament passed a law that effectively dissolves the Constitutional Court's power to review legislation.
Sixteen years of incremental erosion, and the formal architecture of checks and balances is now a decorative facade.
Here's the thing that keeps me up at night — every step was legal. The constitution was amended according to its own amendment procedures. The court was packed using the appointment powers the government legally held. The media was captured through legal regulatory mechanisms. The system wasn't overthrown. It was operated exactly as designed by people who didn't believe in the design.
Which is Levitsky and Ziblatt's point about norms. The soft guardrails failed long before the hard ones were dismantled.
And once those norms are gone, the formal checks become just text on a page. A constitutional court that's been packed with loyalists isn't going to check the executive. An electoral commission that's been captured by the ruling party isn't going to ensure free elections. A media landscape that's been consolidated into government-friendly outlets isn't going to expose corruption. The formal separation of powers depends on an informal ecosystem of accountability that's much harder to design and much easier to destroy.
What does this mean for someone trying to assess the health of their own democracy? What are the indicators that the immune system is failing?
Let me give you four things to watch. First, who appoints the judges? If the executive controls judicial appointments with minimal legislative input, that's a red flag. Independent judicial appointment commissions are a better signal. Second, how are electoral rules changing? If the rules are being rewritten shortly before elections in ways that advantage the incumbent, that's not technical adjustment — that's power consolidation.
Third, who controls the budget? If the executive can spend without meaningful legislative oversight, or if the legislature's budget office has been defunded or captured, the most fundamental check — the power of the purse — is gone.
Fourth, and this is the hardest to measure but maybe the most important — does the political class still believe in the system? Do losing candidates concede? Do winning candidates resist the temptation to use their victory to permanently entrench themselves? Do judges rule against the government that appointed them? If the answer to these questions is no, the formal architecture doesn't matter. The system is already running on fumes.
I think there's a fifth one too — the professional civil service. When you see a government purging career civil servants and replacing them with political appointees, that's a sign they're preparing to use the state apparatus for partisan ends. A professional, non-partisan civil service is one of those boring institutional features that nobody thinks about until it's gone.
That connects to something Montesquieu understood that we've partly forgotten. He wasn't just concerned with formal institutional design. He wrote extensively about what he called the spirit of the laws — the cultural, social, and moral conditions that make laws effective. A constitution that works in one society might fail in another because the underlying norms and habits are different. The institutional architecture is necessary, but the political culture is what makes it habitable.
The theorists, from Montesquieu to Madison to Dahl to Levitsky and Ziblatt, converge on a uncomfortable conclusion. The system only works if the people operating it believe in it. When that belief evaporates, no constitutional text can save it.
Belief is hard to measure and even harder to rebuild. Hungary's opposition has been trying for sixteen years to reverse what Fidesz has done, and they've made essentially no progress. Once the ruling party has captured the courts, the media, the electoral machinery, and the civil service, democratic reversal becomes nearly impossible through democratic means. The opposition is playing a game where the other side controls the referees, writes the rules, and owns the stadium.
Which is why prevention matters so much more than cure. Once the immune system has collapsed, you don't get it back through elections.
And this is the point where we should acknowledge that no system is perfectly designed. Every implementation of separation of powers has failure modes. The American system can produce gridlock and executive aggrandizement — the Brennan Center's finding that seventy-three percent of Supreme Court rulings on executive authority expanded presidential power suggests the judicial check is not functioning as a constraint. The Westminster system concentrates enormous power in the executive when the government has a majority, and the Henry the Eighth clause data shows that power is growing. The German system relies heavily on a constitutional court that makes controversial decisions — striking down climate spending legislation in 2025 — that can undermine its own legitimacy over time. South Africa's system has strong judicial powers but weak enforcement capacity. Hungary shows what happens when a determined majority takes over every institution.
Is the lesson that institutional design doesn't matter? Because that seems too cynical.
No, institutional design matters enormously. It's just not sufficient by itself. The German Constitutional Court can ban extremist parties because German political culture supports that power. The same formal power in a different country might be ignored or provoke backlash. Design sets the parameters. Culture determines whether those parameters hold.
Which brings me to the forward-looking question. If separation of powers depends on norms and beliefs, and those norms have been eroded in multiple democracies simultaneously — we're not talking about one country, we're talking about a global trend — what does recovery look like? Is there a playbook for rebuilding democratic norms once they've been broken?
The honest answer is we don't really know, because there are very few successful examples of democratic restoration after the kind of systematic institutional capture we've seen in Hungary. Poland had a partial reversal after the 2023 elections, but the new government is finding it extremely difficult to undo the institutional changes the previous government made, partly because the captured courts keep blocking their reforms. It's a paradox — you need democratic institutions to restore democratic institutions, but the institutions you need are the ones that were captured.
You're stuck in a loop where the very tools you'd use to fix the problem are controlled by the people who created it.
Which is why some scholars are starting to think about this problem in a different way entirely. As governments gain access to increasingly powerful AI tools — for surveillance, for propaganda, for predictive policing, for automated decision-making — the traditional checks of an independent judiciary and a free press may not be enough. Some legal scholars are already proposing what they call algorithmic separation of powers — independent AI systems that audit government decisions for bias, for procedural violations, for human rights impacts.
An AI ombudsman.
The idea is that if the human checks have been captured, you need automated checks that are harder to intimidate or co-opt. It's highly speculative and raises its own set of democratic concerns — who audits the auditors? who designs the auditing AI? — but it reflects a genuine anxiety that our traditional institutional safeguards are being outpaced by the tools available to those who want to dismantle them.
The glockenspiel of techno-optimism.
It might be. But it's also a recognition that the Madisonian framework — ambition counteracting ambition — was designed for an era when the tools of power were armies and patronage networks. The tools of power in 2026 are data, algorithms, and attention manipulation. Different weapons may require different defenses.
To pull this together — separation of powers isn't a fixed formula. It's a spectrum. The key variable is whether each branch has meaningful independence and the will to use it. The formal architecture matters, but the informal ecosystem of accountability matters more. And the theorists, from Montesquieu's misreading of Britain to Levitsky and Ziblatt's warning about norms, all converge on the same insight: institutions are only as strong as the people who inhabit them.
The most important check may not be constitutional at all. It's independent media, civil society organizations, a professional civil service, and a political culture that values restraint. Those are the antibodies that keep the democratic immune system functioning. When they're gone, the formal separation of powers becomes a Potemkin village — impressive architecture with nothing behind it.
Keep an eye on who appoints the judges, how the electoral rules are changing, who controls the budget, and whether the people in power still believe in the system. Those are your early warning indicators. Everything else is commentary.
Now: Hilbert's daily fun fact.
Hilbert: In 1819, naturalists visiting the Cape Verde islands reported the discovery of a previously unknown species of naked mole rat, only to declare it extinct within the same decade after a volcanic eruption on the island of Fogo blanketed its entire known habitat in ash. No specimens survived in any collection.
Hilbert: In 1819, naturalists visiting the Cape Verde islands reported the discovery of a previously unknown species of naked mole rat, only to declare it extinct within the same decade after a volcanic eruption on the island of Fogo blanketed its entire known habitat in ash. No specimens survived in any collection.
It existed just long enough to be noticed and then immediately wiped out. That's grim.
The mayfly of the rodent world.
Which leaves us with the hardest question — what happens when the system breaks, and can it be fixed? The honest answer is that we have more examples of democratic erosion than democratic restoration. But that doesn't mean restoration is impossible. It means it requires something that can't be legislated: a political movement willing to use power to rebuild constraints on power. That's a paradox, but it might be the only way forward.
If you found this episode valuable, rate and review the show — it helps other curious minds find us. This has been My Weird Prompts, produced by Hilbert Flumingtop. I'm Herman Poppleberry.
I'm Corn. We'll be back.
This episode was generated with AI assistance. Hosts Herman and Corn are AI personalities.