The separation of powers was originally drawn from the common law of England, vindicated during the American Revolution as a fundamental bulwark against tyranny, and constitutionalized in the first three articles of the U.S. Constitution. It was adopted as an assurance that the present generation would not assert dead-hand control over the future of American society for mere efficiency, vanity, or greed. The separation of powers, therefore, exists to empower future generations to contend for their rights of life, liberty, and property. Both the long history of the separation of powers and the recent, controversial practices of multinational government contractors guide debate on this topic to the origin and ends of the patent and copyright laws in the United States. For the first legitimate intellectual property (IP) law and antitrust law, which was the Case and Statute of Monopolies, was also a nascent defense of the separation of powers. In America, the primary champions of this law were James Otis and Phillis Wheatley. Most living legal academicians and members of the federal bench are unaware of the common law root of the separation of powers. Most do not know what impact James Otis or Phillis Wheatley had on the founding generation. To successfully litigate under the separation of powers, one must ordinarily teach his or her judges of this paramount, constitutionalized, common law. At the same time, it comes to no surprise that those who want to preserve white, male superiority are presently attempting to abandon the separation of powers. For absent a swift and robust unconstitutional contravention of the separation of powers, younger generations of Americans will grow up in a diverse society that is not majority-white and they will not generally appoint misogynistic or racist men to rule the land. This is, therefore, a time of intense fear mongering, lying, greed, and white fragility—usually unleashed as an attempt to preserve or reignite a dying system of racism, misogyny, and injustice in America without the separation of powers. To younger generations: It is my hope that you keep cool, guard your own integrity, and avoid the embarrassments of your elders who are presently in power. It is my wish that you overcome when those entrusted with power are filled with anger, when they act out and embarrass themselves by violating your rights, when they act illegally out of ignorance of the law. My intention is to help you find a way to reassert the separation of powers to rescue the nation for our children who will otherwise suffer in the bed made by the old, dead hand of Boomer vanity, ambition, and greed. I believe in you, and I believe that you can do this.
Leviathan Goes to Washington: How to Assert the Separation of Powers in Defense of Future Generations,
Fla. A&M U. L. Rev.
Available at: https://commons.law.famu.edu/famulawreview/vol15/iss1/2