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The Importance of Structure v. Parchment Barriers

Why is the structure of the government, as outlined in the Constitution, so important? Professor Ilan Wurman explains how proper structure maintains separation of powers and protects the rights of the citizens. Without a structure to uphold the Bill of Rights, they are merely a “parchment barrier” that cannot withstand the power of unchecked government. https://youtube.com/watch?v=qGGClVWs9fs


We cannot underestimate the importance of structure to preserving liberty. As Justice Scalia was fond of saying, "Any tinpot dictator can have a Bill of Rights.” The Bill of Rights for the Soviet Union was extraordinarily capacious, the Bill of Rights for the North Korean regime is extraordinarily capacious. But without structural protections, Bill of Rights are mere “parchment barriers,” in the words of the Federalist. They're mere parchment barriers because they're very easy to transgress without structural mechanisms keeping those in power in check. So it's a structure that allows the different institutions of government to check and balance each other. It's structure that allows the ambition of members of Congress to check the ambition of members of the executive branch. It's structure that allows an independent judiciary to check the work after the fact of the members of Congress and of the members of the executive branch. It is this structure that allows ambition to counteract ambition that keeps government officials in check. Thereby, preserving liberty much better than mere parchment barriers ever could. The Founders also recognized that the people themselves were motivated by self-interest, and so they argued most famously in Federalist 10 that the representative mechanism, the republican form of government, would remedy this problem by extending the republic over a greater extent of territory. And this meant that any particular self-interested faction would be less likely to garner majority support and captivate a majority of the nation, thereby, also ensuring that the self-interest of minorities did not end up translating to infringement of the liberty of others. You want the popular will ultimately to translate into policy. You want the separate branches of government to be able to coordinate with each other, but you don't want this coordination to be too easy because if the coordination were too easy then it would be too easy for the passions of the people in a particular time to gain control over the national instruments of power. Thus, the Founders created a regime, created institutions of government, that both promoted coordination but also friction. It was responsive to the popular will but they also wanted to slow down the popular will, and to refine and enlarge it through these institutional mechanisms that also create friction.

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