When constitutionalism is a dangerous thing

Only in a political system in which the branches of government are truly separate from each other is the judiciary the least dangerous branch. If all three branches of government were to employ their departmental powers in a common effort, that enterprise might take on a political form as diverse as there are causal combinations between legislative will, executive force, and judicial judgment–far beyond the boundaries of the Constitution. In such a case, the department that holds the power to judge–employing the judicial word without the constraints of a fundamental law–could at times direct and at other times empower those departments holding the sword (executive) and the purse (legislative).

What did the founders fear from an unhealthy collaboration between the three branches of government? That all the branches of government would become dangerous. To what or to whom? The great majority of Hamilton and Madison’s fifty-six uses of the word “dangerous” in The Federalist appear in the context of the threat that power misconstrued and/or misapplied poses to political liberty.

Progressivism has encouraged just such a danger, not only in its subordination of individual liberty to its expansive, paternalistic social agenda, but in undermining the boundaries between the three branches of the federal government and denying the reality of fixed constitutional limits to federal governmental power.