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July 6 2017

Legal Brief: Rethinking Administrative Deference

by Erin Hawley




The Genius of the American Constitution

The genius of the American Constitution lies not so much in its Bill of Rights—though its protections are crucial—but rather in its structure. As the Framers recognized, it was not uncommon for the most tyrannical of governments to possess magnificent documents that purported to protect the very best of individual freedoms, like our Bill of Rights’ protection of the right to conscience, the right to be free from unreasonable searches and seizures, and the right to trial by jury. These protections, however, were too often ignored by a centralized government.  

The Framers’ response to government’s tendency to accumulate and abuse power?is perhaps the reason our Constitution endures. The Framers of the Constitution were heavily influenced by the writings of the French political philosopher Montesquieu. Montesquieu argued that individual liberty was best protected by separate spheres of government authority.  

"The Framers’ response to government’s tendency to accumulate and abuse power is perhaps the reason our Constitution endures.” 

Indeed, by 1787, as a result of the failure of state governments and the not-too-distant memory of the English Crown, “there was a widespread consensus that a system of separated powers—even one that was predicated on representative democracy— required effective checks on the accumulation and concentration of power in any one branch.” 

The Federalist Papers time and again praise the value of separated powers. In Federalist 47, Madison argues that “[n]o political truth is certainly of greater intrinsic value,” than the separation of powers. For Madison, it was imperative that each branch of government remain distinct. He and the other Framers of the Constitution were well aware that government “power is of an encroaching nature.”  

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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