Part 2 – What threats did The Federalist Papers and James Otis illuminate?

The main thrust of the Federalist Papers was to solidify the governance principles of separation of powers, insurance of proper checks and balances, and the value of Federalism. In addition, the arguments of James Otis against Writs of Assistance are critically important to understand in the context of the threats to the Federalist Papers’ principles. In this post I feel it is more intellectually meaningful to view the principles because the negative consequences or threats, in the absence of the principle, illuminate in a more intellectually digestible way what the nature of the threats are rather than just listing threats outright.

  • Separation of Powers:(92) A model of governance of a state that was first practiced in Ancient Greece and Rome. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The U.S. model of separation of powers lies in the legislature (Congress), executive (President), and the Judiciary (Supreme Court).
  • Checks and Balances:(93) In order to prevent one branch from becoming supreme, to protect the minority from the majority, and to induce the branches of government to collaborate, government systems that employ a separation of powers need a way to balance each of the branches. Checks and balances allow for a system-based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal court system.
  • Federalism:(94) Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term federalism is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units such as States. Federalism in the U.S. is the evolving relationship between state governments and the federal government. The relationship is associative in nature whereby that means that each state and the federal government are different agents and trustees of the people, but do so with different powers. Both levels of power exercise authority to the citizens’ benefit and if either invades the rights of the people, they can make use of the other as the instrument of redress for any grievances.

In essence, the main threat the Constitution is designed to protect the people from is a source of tyrannical and unchecked power that is in direct conflict with the Bill of Rights.(95) The tension between federal law and state law in this structure is such that state law cannot conflict with the principles of the Constitution and there is a check and balance process for this associative relationship to remain reasonably balanced.(96)

The work of James Otis in the context of these principles is of paramount importance. If people cannot feel secure from the threat of federal or state government suspicion and power, the concept of democracy ceases to exist. The United States Constitution is comprised of 7,591 words, including signatures, which are designed to protect the natural rights of its citizens to enable the U.S. Democracy to exist.(97) By comparison, the European Union’s constitution is approximately 70,000 words and is oriented around what the powers of the state are.(98) It is not my intention to be anti-European by bringing up this data point; I am just attempting to illustrate the differences in governance technology through the use of another technology called language, which the authors of the Federalist Papers warned us about.

The founding fathers of the United States wanted to ensure the source of power for its governance system was derived from its people. People who themselves were empowered with natural rights in easy to understand and clear language. It is my opinion these original principles that were completely relevant at the signing the Constitution are still completely relevant today, if not more so. The times have changed but the principles are the same, however in the modern era and non-trivial changes in technology mean that the Constitution may have power-oriented threats that were not originally imagined. Lets explore further what those threats are in my next post.

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