The Dialectic of US Federalism

This is taken from Joseph Farrell’s God History and Dialectic.  I found this on googlebooks.

In other words, the American federal constitution of 1789m as originally conceived and without the massive modifications which occurred after 1865 and 1913, was a brilliant adaptation of the original Augustinian dialectical scheme, giving a concrete mechanism of State, and founding it upon the new manifestation of the Chameleon godhead: the People

(Legislative is not Executive/Judicial
Judicial is not Executive/Legislative                                                                                                                               yet, all =  THE PEOPLE
Executive is not/Legislative/judicial

And lest it be misconstrued, the “People” here embodied a unique synthesis of the nationalist and internationalist understandings of fraternity, for all national, ethnic, and religious heritages could, in theory, be “American,” because what defined the “People” in America’s case was something negative: the mutual recognition of the moral sovereignty and the sanction of the individual person within the local sovereign state, a sanction not mediated by any intervening political instrument or agency, including any specific religion.  Like Leibniz’s monads, the “person” in this sense became a legal entity unto himself.  The solution to the long legal dilemmas posed by the development of law within the Second Europe which this arrangement embodied was therefore both brilliant and breathtaking.

But there was (and is) an inherent problem which this arrangement poses, a problem that can best be illuminated by stating it in the terms of St Gregory Nazianzus:  what is the relation of origin , if any, between the People and the mutually opposed organs of federal government? If there be none, then those relationships reduce to merely dialectical oppositions, a problem first posed by the Anti-Federalists.

The essence of the Anti-Federalist critique of the 1789 constitution  then, was that it tended, if one may so put it, to collapse, through the multiplication of governmental agencies and the relations of oppositions that distinguish them, either into perpetual anarchy on the one hand, or into an eventual amalgamation of all powers of government into a new and superintending form of tyrannical simplicity.

The particular focus of their critique was on the fact that the supreme court had no direct connection to the People from whom it supposedly derived its authority, bur rather that it was a abody whom they could influence only mediately, via the hypostasized executive and legislative relations of opposition within the government.  The parallel to the place of the holy Spirit within the Augustinian Trinity is intriguing, for there to the dialectical construction served only to divorce the Spirit from the Father by making the Son a mediating step in the dialectical process between the two.  The Anti-Federalists feared what has since become a reality, that once in place the Court would begin not only to review cases and act on legal precedent, but actually to create law out of flimsy legal materials in a judicial activism that sought not to adhere to the strict construction of the law, but which sought to embody changing moods and political trends in its decisions. The parallel to the change in ecclesiastical law of the status to the Papacy is obvious.  In short, the Court would become, on their view, a virtual second legislative body, not subject to any checks and balances.  Conversely, the Federal government, which takes on the increasingly menacing aspects of tyranny, also takes on the increasingly menacing aspects of anarchy, as the several departments of the executive and legislative branches of “government” not only multiply like rabbits, but multiply increasingly contradictory regulations and edicts, squeezing and molding “The People” into ever more restricted fields of liberty.

GHD: 702-704