Separation of powers magic: guns, Harry Potter and Federalist Papers

The Federalist Papers
may be the definitive source on the separation of powers between the three branches of government, but a Miami judge used the magic of Hogwarts to justify a ruling striking down as unconstitutional a law the state Legislature intended as a fix to the state’s controversial “stand your ground” statute.

Miami-Dade Circuit Judge Milton Hirsch used the corruption and ineptitude of Cornelius Fudge, the Minister of Magic of Britain, and the manner in which law and order are maintained at Hogwarts School of Witchcraft and Wizardry as an object lesson in Monday’s decision.

Hirsch contends that the change made by the Legislature and signed into law by Gov. Rick Scott is a matter that should have been handed by the judicial branch.

To support his ruling, Hirsch relied in part on the 229-year-old writings of Alexander Hamilton, James Madison and John Jay.

Highlighting prior court rulings regarding legislative overreach, the judge quoted Madison’s writings in The Federalist Papers:

“Exaggerating for effect, Madison wrote, ‘The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex’,” Hirsch wrote.

The line was from the 48th — titled “These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other” — of the 85 essays Madison wrote in collaboration with future Supreme Court Chief Justice Jay and Broadway muse Hamilton.

In a footnote, Hirsch wrote that a similar sentiment from Madison is found in the 47th essay.

There, Madison wrote:

“The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Admittedly dry, even to those with a legal ear.

So Hirsch turned to the Hertfordshire Law Journal “for a more modern expression of the same concern.”

In her essay “Harry Potter and the Separation of Powers: A law and literature review of J.K. Rowling’s Harry Potter and the Order of the Phoenix,” Carol Spanyol asserts that wizards could learn a thing or two from muggles when it comes to running a fair government.

Spanyol submitted the essay in contest for law school students at the University of Hertfordshire.

“The constitution of the wizarding society is fundamentally unjust because of its ignorance of the doctrine of the separation of powers, the Ministry of Magic is both executive and legislature and the Wizengamot (the judiciary) is composed entirely of Ministers from the Ministry and chaired by Cornelius Fudge, the Minister for Magic,” Spaynol wrote. “This lack of separation of powers leads to tyranny, with the Ministry controlling the content of the Daily Prophet, and this tyranny is exemplified when the principles of natural justice are threatened in the trial of Harry Potter.”

Spaynol notes that the wizarding world often is rescued by Dumbledore, Hogwarts’ headmaster, who “repeatedly ensures that the outcome of the judicial process is just, albeit it through encouraging kidnap and escape, and illustrates that natural justice can only survive when the judicial function is subject to the separation doctrine.”

By the way, Spanyol didn’t win the contest, although she was a runner-up for what the judges noted was “one of the most original” submissions.

Posted by Jim Turner