The Federalist Phoenix No. 1

Of Structures and Systems

The American Revolution was the violent expression of 18th century republican sentiment “to resist and overthrow tyranny.”[i] After living under the oppression of the British monarchy and successfully throwing off its shackles on July 4, 1776, many of the founding fathers who framed the U.S. Constitution 11 years later were keen to prevent tyranny from arising in any new form of government they proposed. Shunning the populist tendencies of democratic ideology and the concomitant potential for “mob rule,” George Washington, Thomas Jefferson, John Adams, James Madison, and Alexander Hamilton were dyed-in-the-wool federalists who passionately adhered to and espoused republican ideals of governance. They were also some of the key framers of our national charter—the Constitution. A federalist was someone who supported the creation of a strong central government—the one created by the Constitution and run by the framers. After a long, uncertain, and arduous journey of drafting, debating, signing, and ratifying, the Constitution went into full force and effect on June 21, 1788, after New Hampshire became the ninth state to ratify it. The Constitution of the United States created structures and systems designed to establish a government of, by, and for the people, while drawing its power to govern from the people. The three most important structures are the three co-equal branches of government: the legislative, the executive, and the judicial. The most important systems are the levers of government that determine how these structures interact and are called checks and balances. The fulcrum against which these levers are applied is the Constitution making it the primary, but mostly invisible and esoteric, means of getting work done. Articles I, II, and III of the United States Constitution created the co-equal Legislative, Executive, and Judicial branches of the Federal Government, respectively.

As representatives elected by popular vote of the people in the states, the primary task of the legislative branch is to write and enact laws using its enumerated powers by informing the legislative process with the desires and on behalf of its constituents. The President of the United States also receives popular votes in the states but is only elected to office by the electoral college. He oversees the daily administration of the federal government through his appointed cabinet members, department heads, and agency staff. The judicial branch is tasked with adjudicating challenges to legislatively enacted as well as constitutionally derived laws and in so doing, guaranteeing equal protection for all citizens under the law. In addition to their primary purposes, each branch plays an important role to ensure a delicate balance of power exists between them through a system of checks and balances.

Of Checks and Balances

Congress can employ checks on both the executive and judicial branches. It has oversight responsibilities for the vast federal bureaucracy, the use of the presidential veto override with a two-thirds super majority, and the threat of impeachment of both the president and sitting justices. Congress has the power to confirm or deny presidential nominations to the cabinet and federal courts creating another check on both the executive and judicial branches. It also has the power to alter the structure of the federal courts through legislation. The power of the presidential veto is a check by the executive branch on the legislative branch. Its power to appoint federal judges as a means to influence the court’s composition and to grant pardons for federal crimes are presidential checks on the judiciary. The courts, through judicial review, may interpret laws passed by Congress as unconstitutional, thereby limiting its power. It can limit presidential power by ruling actions of the executive branch unconstitutional. Two structural checks on populist tendencies exist apart from the three branches of government. One is the electoral college which directly elects the president regardless of the outcome of the popular vote. Another is the unequal apportionment, by population, of Senate power. On a per capita basis, less populous states have greater representation than more populous states.

Of Balance and Imbalance

The structures of government and the systems by which they are operated, converge to create a delicate balance of power equally distributed, but not evenly apportioned among the branches. In other words, the powers are distributed among all three branches so that each checks the other two but some powers are more efficacious and final in their operation than others. For example, the power of the presidential veto override by a two-thirds super majority in Congress is a final, unchallenged action taken on a bill it wants enacted. Over objections by the President and without his signature, the bill becomes law. The judicial branch has no constitutionally defined power to enforce any of its rulings. That task falls to the executive branch. Likewise, Congress may impeach and convict a president but has no power to remove him from office if he chooses not to remove himself by honoring the will of the people. Under any of these hypothetical scenarios, a constitutional crisis may emerge.

If Congress were to abdicate its powers of executive branch department oversight, it would be unaware of, and consequently, unlikely to exert control over, presidential or administrative overreach. If Congress does not enjoy a veto-proof super majority, the President can simply veto legislation that he opposes regardless of how much popular support it may have. Conversely, if congressional members wished to obstruct presidential powers, it could constantly demand hearings and subpoena executive branch administrators to testify before Congress. Or the Senate could refuse to confirm the President’s cabinet and judicial nominations. Congressional overreach occurs when it works with one of the other two branches to either pass laws which are unconstitutional or alter the structure of the courts in its favor. Congressional overreach and judicial review have become synonymous with the process of amending the constitution, with far less accountability to the governed—we, the people. Article V of the Constitution provides for its amendment by a double super-majority in Congress and the States. Congressional overreach effectively amends our Constitution without requiring the heavy lifting of obtaining a double super-majority.

Of Trust and Conspiracy

To be effective, these constitutionally created structures and systems must exist and operate in an open atmosphere of mutual trust that each branch will always seek to preserve and use its own powers to check the powers of the other branches. If, as some of the Constitution’s critics (anti-federalists) feared, two or more branches should conspire to work together in pursuit of wielding unlimited, shared power for their own self-serving purposes, tyranny could arise. For example, if disparate, divisive political philosophies gain traction over the administration of the government, very little may get done. However, when these philosophies are shared by a majority of the members of one political party and the same party controls all three branches of government, tyranny is not only more likely but difficult to prevent. In the words of Abigail Adams, “All men would be tyrants if they could.”[ii]

The judiciary, in particular, is built upon trust—trust that the other two branches of government will honor its rulings and perform their constitutional duties of checking and balancing each other. However, if blind trust continues to be demanded by the courts, undeserved or not, instead of the courts seeking to build trust through blind adjudication of laws, its credibility suffers. And if the judiciary abdicates its power as a co-equal branch to become a public supporter of the executive branch, it will become, by extension, complicit in the extra-constitutional actions of the latter. This, in turn, gives rise to one of the most vexing issues left unattended by the framers of the Constitution: the impotence of the Supreme Court.

The Supreme Court is impotent to enforce its rulings because it must trust in the cooperation of the U.S. Marshal Service, which is part of the Department of Justice (DOJ). And since the DOJ answers to the Executive branch, the courts must trust the President to undertake its duties of enforcing the court’s interpretation of the law. But a less than virtuous President, who may not agree with the court’s ruling, can simply tell the Attorney General, who is the head of the DOJ, not to enforce it. The executive branch can either ignore the court’s ruling outright, not enforce it, flout it, or in a contemporary example, publicly threaten impeachment of the justices who issued the ruling. If the court is conspiring with the President, it could also demonstrate its judicial impotence by rendering a Pyrrhic victory to a plaintiff by ruling against the President in full knowledge that it has no force of law if the DOJ is not independent of the executive branch. When called upon to render ponderously significant opinions on the constitutional authority of the executive branch, the Supreme Court can do so with a wink to the sitting president and a nod to Hamilton. In worst case scenarios, the president can also use the DOJ for his own personal prosecutorial and enforcement agency to go after political enemies.

Of Precedents and Present

In March 1791, the executive branch effectively amended the Constitution when the ink was barely dry—less than three years old—by fomenting congressional overreach to establish a National Bank. While Treasury Secretary Under George Washington, Alexander Hamilton famously and successfully argued that the “Necessary and Proper” clause in Article I, Section 8 gives Congress “implied powers” to use whatever means necessary in the exercise of their explicit, enumerated powers, therefore greatly expanding congressional power—with the blessing of the President. In this case, since Congress has the power over the purse, if its members are convinced a bank is necessary to exercise that power, they can pass a law to create a bank as well as the corporation to run it. As expected, President Washington and a majority in congress agreed with Hamilton’s reinterpretation of the Constitution, never mind many of them benefitted financially from the passage of the bill creating a corporation for the bank. Likewise, President John Adams put his imprimatur on congressional overreach by signing into law four bills commonly known as the Alien and Sedition Acts in 1798. The Constitution did not enumerate the powers to investigate and prosecute foreigners without due process as belonging to the executive branch. Nor did it enumerate the power to criminalize public criticism of the government. Congress, by passing these empowering acts, effectively amended the Constitution to do so. All but one were later repealed or expired.

The Supreme Court has effectively amended the Constitution through reinterpretation. For example, it extended constitutionally guaranteed civil and due process rights in the fourteenth amendment to fictional business entities—corporations—by anointing them as persons in a landmark case in 1886, Santa Clara County v Southern Pacific Railroad. This precedent was upheld most recently in the Citizens v United case of 2010 giving corporations the right to donate unlimited funds to political interest groups (that align with their values is implied). In 1973, Roe v Wade expanded the federally protected civil rights of women to include the right to make private decisions about their own bodies. The John Roberts’ court overturned this long-standing precedent in 2025 by interpreting the Constitution as not giving women the right to an abortion.

By ignoring its duties enumerated in the Constitution the current Supreme Court no longer acts as a restraint on executive branch power. Instead, it is expanding presidential power while giving a nod to the discriminatory precedents and inequality enshrined in the Constitution under the dubious concept of “originalism.” In effect, the Roberts’ Supreme Court is helping to create the monarchical executive branch Alexander Hamilton wanted and the aristocratic Congress favored by James Madison when they were helping to frame the Constitution in 1788. Likewise, the republican majority Congress refuses to limit the president’s power and instead is in lock-step with him in a mutually destructive co-conspiracy to hold onto power under any circumstances.

Fixing these problems caused by an ideological, tri-partite conspiracy will not solve the bigger issue of accountability so long as the executive branch uses the DOJ as its own prosecutorial agency and wields the power of presidential pardon. Nor will it give the Supreme Court the power it needs to issue and enforce impartial rulings. We are witnessing what James Madison feared most: “We may not always have an enlightened statesman at the helm.”[iii]

Of Futures

The government structures and systems created by our Constitution to protect the public from tyranny by the government are only as effective as the people who control them. If, despite the existence of structures and systems designed to prevent it, tyranny arises, it may only be stopped by the public acting in opposition to those people in the government allowing such tyranny to exist. Inasmuch as tyranny by the government arises within the structures and systems created to prevent it, those structures and systems must be amended, altered, abolished, or overthrown by any means necessary by the public to restore or provide for the establishment of justice and equality. Government’s primary role is not to stand aside and passively remain silent on matters until asked to intervene but to actively participate in the constant review and improvement. of structures and systems meant to ensure equality under the law and the impartial dispensation of justice. When tyranny prevails, justice becomes the servant of inequality. When the people who control the structures and systems of government support justice in the pursuit of equality, the rise of tyranny in government is made more difficult and its likelihood greatly diminished.

Currently, tyranny exists in that our government is operating on behalf of, for the benefit of, and by elite plutocrats. In so doing, it is enriching the wealthiest 10% of Americans while simultaneously impoverishing the bottom 90%.

Publius II

[i] Jill Lepore, We the People, A History of the U.S. Constitution, (, 2005), 78–79.

[ii] Abigail Adams, Letter to John Adams, 

[iii] James Madison,