SCOTUSblog by Andrew Hamm 10/10/2017
The first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and the rise of tyranny should any person or body control more than one of these sources of authority.
Presumably, then, the chief justice of the United States cannot serve as the president’s secretary of state. Au contraire, argued professor Saikrishna Prakash last week in a lecture at the court sponsored by the Supreme Court Historical Society. And in fact this very situation occurred in the nation’s early history. John Jay, who had been the secretary of foreign affairs under the Articles of Confederation, continued to fulfill this role in an acting capacity during the nation’s transition to the new federal government, even after he became the first chief justice. John Marshall, after becoming the fourth chief justice, also continued to serve as secretary of state for President John Adams (and briefly for President Thomas Jefferson). Perhaps more striking than these temporary overlaps, three of the first four chief justices – Jay, Marshall and Oliver Ellsworth – negotiated treaties as special envoys to foreign nations.
What to make of this double duty? Prakash suggested that these overlapping appointments reveal conceptual differences between the 18th century and today about the independence of judicial power.
More:
http://www.scotusblog.com/2017/10/chief-justice-serves-secretary-state-saikrishna-prakash-separation-personnel-u-s-constitution/#more-262669
