Yes­ter­day was Con­sti­tu­tion Day and I let it slip by with­out say­ing any­thing pro­found. Naughty Qwertz. Very bad.

The Constitution’s bril­liance (aside from the rev­o­lu­tion­ary idea that gov­ern­ment power is derived only from the peo­ple) is in its attempt to insu­late itself against cor­rup­tion. The Framers sep­a­rated gov­ern­ment power among the Fed­eral branches, and between the Fed­eral and State gov­ern­ments, so that tyranny could grow only slowly. The Framers knew they were draft­ing a doc­u­ment com­posed largely of com­pro­mises, and prob­a­bly knew that would come back to bite the coun­try in the back­side at some point in the future. So they cre­ated the Sep­a­ra­tion of Pow­ers doc­trine to help slow that down.

Today, we see all sorts of ero­sions of the Sep­a­ra­tion of Pow­ers doc­trine: mostly the Exec­u­tive encroach­ing on the Leg­is­la­ture or the Leg­is­la­ture encroach­ing on the Judi­ciary. Of the three branches, the Judi­ciary tends to be the least “activist” in break­ing down the Sep­a­ra­tion of Pow­ers (though they are not guilt­less in this). With the degra­da­tion in the sep­a­ra­tion of pow­ers, the Fed­eral gov­ern­ment will become more nim­ble and we will see changes occur­ring at an increased pace. The Fed­eral gov­ern­ment is not so much a hulk­ing, lum­ber­ing, clumsy sloth by design any more as it is by sim­ple bloat.

Unfor­tu­nately, the Sep­a­ra­tion of Pow­ers doc­trine also pro­tected those flaws in the Con­sti­tu­tion that were born of com­pro­mise. Slav­ery could have been abol­ished under the Con­sti­tu­tion in 1808, but it took 60 more years and over 600,000 dead before that hap­pened. Chang­ing some­thing so fun­da­men­tally bad as Con­gress’ power to lay and col­lect taxes (Art. I, § 8, cl. 1), the Com­merce Clause (Art. 1, § 8, cl. 3), the post office (Art. 1, § 8, cl. 7), or chang­ing the abil­ity of some­thing like Amend­ments XVIII and XXI to even occur in the first place, or repeal­ing bad alter­ations, like Amend. XVI or Amend. XVII, are all hin­dered by the Sep­a­ra­tion of Pow­ers doc­trine, not so much by virtue of the dif­fi­culty of alter­ing the actual text of the Con­sti­tu­tion as by virtue of the dif­fi­culty faced by the Judi­ciary in nav­i­gat­ing Exec­u­tively– and Legislatively-​​entrenched obsta­cles to reach a just solution.

Nev­er­the­less, the dis­per­sion of power effected by the Con­sti­tu­tion is mas­ter­ful, and a tes­ta­ment to the bril­liance of the Framers.