This is the interview that closes Week 14 of Self-Evident: The Road to 1776. Saturday’s episode read Montesquieu’s chapter on England and followed his design into Madison’s hands. Tuesday’s watched the House of Representatives stop checking the executive. Today Jared takes the judicial side of the same question, and his answer is that the courts have been handing the executive power too.

This episode goes into the sixth chapter of the eleventh book — the most quoted passage of political writing produced in the eighteenth century, and among the least accurately remembered. Read to the halfway mark it says what everyone thinks it says: three powers, three sets of hands, keep them apart. Read past that point and Montesquieu dismantles both prohibitions. He does not want a permanent judiciary at all. He wants occasional tribunals of ordinary men, assembled for th

Covers the fourth declaratory clause in full, the 1689 revenue settlement and the four-year customs grant, the first Mutiny Act and its seven-month life, Learning Resources v. Trump and the three-justice major questions plurality, Section 122 and Section 307, and the two bills now sitting in the Senate Finance Committee.

Congress passed a statute, years or decades ago, that said something broad and pleasant, and then handed the real lawmaking to an agency the voter cannot reach. This is not a scandal in the ordinary sense. No one broke into the Capitol and stole the power to legislate. The strange and important truth at the center of this hour is that the power was given away.