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Federalist No. 71

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The Duration in Office of the Executive
From the New York Packet
Tuesday, March 18, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.

There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.

The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.

It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.

It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate.

It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation [1] attempted by them, what would be to be feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.

PUBLIUS.

1. This was the case with respect to Mr. Fox’s India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people.

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Federalist No. 14 – Cathy Gillespie

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Tuesday, May 18th, 2010

Federalist #14

First, a big thank you to Dr. Allen for his insightful comments.  As usual, Dr. Allen does much more than simply explain to us what is in the reading, he takes us several steps further.

And thank you to all of you who commented today.  Especially to Kay for her heartfelt story about the airport encounter, and the glimpse into the soul of our Union.

Wow! I loved Federalist #14!  There are so many beautiful passages about unity in our country –  “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies.” While the American people “have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience…”  But the item that most caught my attention was the discussion of the difference between a republic and a democracy. I was struck by the fact that many of the communication and travel constraints our founding fathers operated under have been removed in present day by technology, and by the fact that technology is facilitating our country’s move toward democracy, something our founding fathers would not see as an improvement.

The difference between a republic and a democracy is so important, and so little understood.  In Federalist 14 and elsewhere, Publius devotes a good amount of time explaining the difference between these two forms of government, and detailing the weaknesses of a democracy as opposed to a republic.  In our founding fathers’ time, a democracy within a large geographic area was impossible, limited by the “distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions.”  In Federalist 14 Madison points out that the geographic size makes the United States much more suited to a republic than a democracy.

Today, technology has erased the constraint imposed by geographic size, and our culture is drawing us towards democracy. Television shows such as American Idol where millions of people cast ballots; online polls where instant readouts of the public’s tastes, preferences and opinions are measured; Twitter, Facebook: all put more power than ever in the collective public’s hands to instantly express opinions on any matter.

But the weakness of pure democracy is the same, whether it is a small geographic area where the people are physically coming together to vote on every issue affecting them, or whether it is millions sitting at computers, in front of their televisions, or texting on their cellphones “voting.”  As Hamilton states in Federalist 71, “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”

In Federalist 10 the weakness of pure democracy was summed up this way: “From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

As the culture draws us toward democracy, and with the geographic constraints on democracy removed by technology, it is more important than ever that we understand the systemic flaws of this type of governance.

Our elected officials must be firmly grounded in the meaning of the republic, and their role in balancing competing interests and factions.  We must understand the fundamental reasoning and principles that drew our founding fathers to govern through a republic, and the Federalist Papers are vital for that understanding.

I am so grateful for all who are adding to our knowledge base each day, and journeying with us through these readings.  Thank you!!

Good night and God Bless!

Cathy Gillespie

 

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Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

Friday, July 30th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

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Federalist No. 69 & Federalist No. 70 – Cathy Gillespie

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Greetings from Long Beach Island New Jersey!  What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.

Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles.  In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford.  I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan.  My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!

During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him.  I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency.  When you are President, you are always President, whether relaxing in a small group or at public events.  President Bush respected the office, and lived every day in a way that could make our country proud.

Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ).  The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.

In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties).  This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.

Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.

The President’s power to

“nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution,”

has been expanded over the years by the President’s ability to create “Czar” positions.  These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:

”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”

Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html

Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar.  This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.

In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals.  The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability.  As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives.  Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.

The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments.  And their grasp of human nature is equally as profound –

“Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity.”

“Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”

Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!

On to Federalist #71!

Good night and God Bless,

Cathy Gillespie

Tuesday, August 3rd, 2010

 

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Federalist Papers No. 71 & Federalist No. 72 – Janine Turner

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Howdy from, cooler because we had a mighty storm, Texas!

Federalist Papers No. 71 and 72 are fascinating as they represent Alexander Hamilton’s perspectives regarding the Constitutional lack of term limits for the office of the Presidency. Even with the lack of limits, it is amazing, upon reflection, that only one of our Presidents ever surpassed two terms and even then, it was due to the  Great Depression and World War II. George Washington seems to have, once again, paved the way. By stepping down after two terms, he set the pace.

I don’t consider the readings of Federalist Papers No. 71 and 72 redundant, however. There are always pearls of wisdom within these hallowed pages. Federalist Paper No. 71 makes an interesting statement regarding maintaining the balance of the constitution.

“The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.”

This is a thought-provoking paragraph especially when I size it up to the relevancy of today. Our forefathers were greatly concerned about the power of the legislature. Yet, it appears that the legislature, the people’s representative branch, is being diminished by a more powerful executive branch and competing with the judicial branch  – a branch that is more and more regularly legislating from the bench instead of merely interpreting the law.

Thus, the question is: how is the “balance of the Constitution” faring?

There is another statement that I find intriguing in Federalist Paper No. 71. It is stimulating in its simplicity.

“What but that he might be unequal to the task which the constitution assigns him.”

This is the maxim for all representatives of all branches to remember. Their mission, their task, is to serve their terms in relation to what the constitution assigns them.

The Constitution is to be their conscience.

The Constitution is the conscience of America.

One of the most important elements of the Constitution is the balance of power. If a representative in any branch of the government, whether elected or administrative, is not abiding by this preeminent principle of the Constitution then that representative is disregarding the constitution for his/her own benefit – which would be for none other than that all encompassing vice – power.

As for Federalist Paper No. 72, Alexander Hamilton prophesies a modem of operandi that is ever present within every changing of the guard in our country and is not always to our best interest.

“To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert;”

Rare is the President who can say, “My predecessor did this very well, to him I give due credit and continue its course.”

Ego – the undoing of greatness.

To close, I underscore a statement of Alexander Hamilton’s, from Federalist Paper No. 72, that is both pertinent and amusing.

“Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”

Hamilton had a sense of humor, yet this passage is painted with profundity. The peace of the community is best served when a former President leaves the country in the hands of the new one – for his legacy as President will be either be reduced or redeemed by history not by “wandering among the people like a discontented ghost.”

God Bless,

Janine Turner

Thursday, August 5th, 2010

 

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Federalist No. 71 and Federalist No. 72 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia!

Once again, I write from ground that belonged to our first President of the United States, and once again, George Washington is a leader, by example, on the item under discussion!

Federalist Papers 71 and 72 deal with the President’s Term in Office, and the idea of Presidential Term Limits.

Through the four year Presidential term, the framers strike the perfect balance – enough time for a President to enact his priorities, yet not endanger the liberty of the people:

“As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty.”

The debate about Presidential term limits in Federalist No. 72 is a serious one, and one in which the brilliant amendment process ultimately prevailed.  Hamilton argues that the imposition of term limits takes away the incentive for the President to do his or her best for the people:

“One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them.”

For many years, tradition began by President Washington held that Presidents stepped down after two terms.  Once this tradition was broken by President Franklin D. Roosevelt, momentum gathered to codify what had previously been informally honored.

Eight years is a very long time for an individual to be subject to the stresses and daily intensity of the office of President of the United States. Even though the world moved at a slower pace two centuries ago, the stress of the office was and still is, immense.  We have all observed the photos of the youthful President on inauguration day, and eight years later, wondered at the grey hair and added lines on his face.

In the book, The Real George Washington, by Parry Allison Skousen (a present given to me by my friend and Constituting America Co-Chair Janine Turner), President Washington is quoted at the end of his eight years in a letter to John Jay:

“Indeed, the troubles and perplexities, ….added to the weight of years which have passed over me, have worn away my mind more than my body.”

An observer is quoted in the book as describing Washington after eight years in office this way, “The innumerable vexations he has met with….have very sensibly impaired the vigor of his constitution and given him an aged appearance.”

Since the ratification of the 22cnd amendment, Presidents Eisenhower, Nixon, Reagan, Clinton and George W. Bush were all elected for two terms, and limited by the 22cnd amendment from running for a third. The above description of President Washington after eight years in office could have easily applied to any of these Presidents.  The office of the Presidency has a way of aging its occupant, and eight years is a sufficient time for any man or woman to bear the responsibility.

Hamilton had also worried that too many ex-Presidents would be a distraction to the country:

“Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”

Contrary to Hamilton’s prediction, in modern times, our country and world have benefitted from the wisdom and stature of ex-Presidents. Former Presidents George H.W. Bush and Clinton headed a Tsunami Relief Fund, President Clinton champions many humanitarian efforts and charities, Former Presidents George W. Bush and Clinton head a Haiti Relief Fund, and Former President Jimmy Carter has greatly raised the profile and success of Habit for Humanity, among other causes.

However, no former President has conducted himself with more dignity, grace and class than Former President George W. Bush.  Former President Bush, referenced almost daily by the current White House as the source of all the country’s problems, has quietly and respectfully stood by, and let our current President lead.  He has refrained from criticism of any elected officials, all the while working steadily to develop the Bush Institute, the arm of his Presidential Library dedicated to the promotion of freedom throughout the world.

Term limits for Presidents have ensured that our country not fall into a “monarchy mentality,” and that at least every eight years, those at the highest levels of government leave to make way for new leaders to serve.

Despite Hamilton’s ominous warnings, term limits for Presidents finally came to the United States Constitution through the process set up by the framers for change: the amendment process.  The founding fathers were brilliant men, whose insights continue to light our path today, but they knew they were not perfect, and could not always predict the future.

That is the beauty of our United States Constitution. When the people see a need for change, the demand is urgent enough, and felt commonly enough to bring about the 2/3’s for proposal and 3 /4’s necessary for ratification, there is a structure and process in place to legitimately and peacefully make a change.   The 22cnd Amendment is one of those changes that has bettered our system of government.

Thursday, August 5th, 2010

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Federalist No. 71 – The Duration in Office of the Executive, From the New York Packet (Hamilton)

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Guest Essayist: Kyle Scott, PhD, Professor in the Political Science Department and Honors College at the University of Houston

Federalist #71 continues with a discussion of the President, particularly the length of the presidential term in office. Hamilton lays out the concerns over term length at the beginning: if the term is too long the President will not do what is best for the nation but what is best for himself, and if too short, the President will have no incentive to do the job well, but merely bide his time until the end of term, but he will also be susceptible to undue influence from the people and congress if his term is not long enough. What might be surprising to some readers is that the concern is over how long the term should be where the real discussion should be on term limits. With the ability of incumbents to entrench themselves in office, it might not matter if the term is 2 years or 8 years; if the President keeps getting reelected the term in office could go on indefinitely thus bringing about the first set of negative consequences established by Hamilton. Remember, it was not until 1951 with the ratification of the 22nd Amendment that the President was limited to two terms.

However narrow-sighted #71 might appear at first blush, we should always remember that Hamilton warned in #1 that in writing he will keep his motives within the “depository of his own breast,” which means we should always be on the lookout for multiple lessons. One lesson in particular I find fascinating in #71 is his criticism of democracy. #71 is not just about how long a President should serve before coming up for reelection, but rather the competing preferences of rule by the elite or rule by the people.

In the second paragraph Hamilton mocks those who suggest the President should be moved by popular opinion. “But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion.” The President should strive for the public good while keeping in mind that the public may not always know what is in its own good.

Hamilton would be abhorred by Bill Clinton’s “governing by the polls” in which he would pursue policies based on their popularity. Hamilton would also find it comical that we judge the quality of a sitting President by how well he does in public opinion polls. Presidents should be above such matters. Whether it is going to war in Iraq or looking to reform healthcare, Hamilton suggests that the President should not be influenced by popular opinion. While he was a member of parliament, Edmund Burke held a similar position when he said, “It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.

These he does not derive from your pleasure; nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

The opinion of the people should not guide the elected President, thus, the President should have mechanisms in place to shield him from the public’s backlash, which is why the length of the term is so important to Hamilton. If the term is too short, the President would only do what was popular.

It was not just the people who the President should be insulated from, but congress as well. If he were in office for too short of a term, the President would fall to the whim of congress and thus violate the separation of powers model borrowed from Montesquieu. But, insulating the President from congress was another way of insulating the President from the undue influence—no matter how indirect—of the people.

We should not be shocked by what we read in #71, for it is well-established that Hamilton was in favor of a strong executive. But, Hamilton’s executive is not what the Constitution gave us, nor is Hamilton’s view the predominant view. Many of the Anti-Federalists, not to mention Madison and Jefferson, were in favor of a more populist position. #71, as much as any of the others, reinforces my claim that we cannot read the Federalist as authored by one Publius just as we cannot think of the founders as one group.

Hamilton recognized the capriciousness of the people. He recognized that the people could be petty and have a short-memory, thus something like presidential authority should be institutionally defined and insulated from popular influence. I do appreciate his suspicion of the popular opinion even if he did overestimate the wisdom of the President.

Wednesday, August 4th, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.

 

 

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Federalist No. 72 – The Same Subject Continued, and Re-Eligibility of the Executive Considered, From the New York Packet (Hamilton)

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Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist No. 71 and 72 deal with the Office of the Executive, specifically how long the President remains in office and his re-eligibility to continue to serve in the same capacity.  While Federalist 71 takes an in-depth look at the four-year duration of the Presidential term, Federalist 72 addresses the question of a sitting President’s re-eligibility, or ability to be re-elected to subsequent terms.

In Federalist 72, Publius, in this case Alexander Hamilton, cites the two factors that the Framers of the Constitution believed should determine whether a President is eligible for re-election, and defends the Framers’ rejection of either temporary or perpetual term limits for a President.

According to Hamilton, the only two factors that should be weighed in considering the ability of a President to be re-elected are the quality of his performance as President and the approval of the voters. The four years of a President’s term should give the voters enough time to judge the abilities of a President, and the prospect of being re-elected should give the President the motivation to do a good job. In other words, Hamilton argued that the voters themselves should be the only judges of a President’s eligibility by refusing to re-elect him when his performance is no longer satisfactory.

In arguing that the voters should be the only limits on the extension of a man’s Presidency, Hamilton cites five disadvantages of excluding a sitting President from re-eligibility. The first disadvantage is that a President who is excluded from seeking office again is hampered not only in his ability to work but also in his desire to act in such a way that the voters would re-elect him given the opportunity, described by Publius as “dimunition of the inducements to good behavior.” The “lame-duck” President’s motivations to act uprightly and for the benefit of the people are severely diminished.

The second disadvantage of imposing term limits in the Executive that Hamilton pointed out in Federalist 72 is that a President with no chance of being re-elected may be tempted to usurp his office for personal gain, with an eye to the day when he will no longer serve as President. Worse, an ambitious man, forbidden to seek re-election, could resort to violence in an attempt to prolong his time in the Presidency.

Hamilton’s third and fourth disadvantages of term limits both relate to the experience that a person gains while serving as President. In short, good experience in serving as President is valuable and should not be lightly thrown aside. The good of the country demands that the people capitalize on the leadership of those who already have the experience gained from years of leading the nation.  Additionally, during times of war or crisis, continuity of leadership in the Executive may be particularly important to the safety of the nation.

Finally, Hamilton’s fifth argument against term limits is that they create constitutionally-sanctioned instability. When a new President is elected, the change in administrations creates transitional instability as the new administration must gain the experience already possessed by the outgoing administration. Moreover, the new President, seeing his election as the people’s endorsement of his ideas over his predecessors, takes responsibility for nominating many of those in charge of day-to-day operations, naturally generating instability during the transition of leadership. Consequently, Hamilton argued that one key factor in the stability of our government is the length of time that the President serves; instead of being viewed as a threat to liberty, a voter-approved extension of a President’s service is a benefit because of the increased experience of the administration.

While arguing against term limits, Hamilton points out two possible advantages to having Presidential term limits: “greater independence in the magistrate” (executive office) and “greater security to the people.” The greater independence of the executive office turns out to be easily manipulated, as a President, excluded from re-eligibility, could choose to relinquish the office to a hand-picked successor, effectively remaining a powerful voice in the administration. Additionally, a President who anticipates leaving his office of President may be less interested in fighting over important issues and making political enemies than preserving friendships and allies.

As to the people’s security, while Hamilton recognizes that the influence of a overly-charismatic President can be lessened by term limits, Hamilton points out that forcing a truly good leader out of office may be regarded as a hindrance to security and a “danger to liberty.” Taken to an extreme, it could even cause the people to reject the Constitution in favor of the leader, removing all constitutional protections granted to the people.

Since George Washington, the first President under the Constitution, stepped down after two terms in office, Americans have commonly accepted two terms as a sufficient amount of time in office for any President. Only a few Presidents have sought a third term, and only one has been successful: Franklin D. Roosevelt, our thirty-second President. Serving throughout the Great Depression and most of World War II, President Roosevelt was elected four times to the office of the President, but passed away in 1945, months after beginning his fourth term. His Presidency was unique in that the people sought the continuity of his leadership through two disasters, and supported him as President for what would have totaled sixteen years.

Following President Roosevelt’s four terms in office, the American people decided that the advantages of term limits in limiting the power of any one President outweighs the five disadvantages that Alexander Hamilton laid out in Federalist 72. In 1947, Congress passed the Twenty-second Amendment to the U.S. Constitution, limiting a President to two terms in office. The Amendment was ratified in 1951, and only two states, Oklahoma and Massachusetts, opposed the Amendment.

Today, very little debate exists over the Twenty-second Amendment and executive term limits, though various members of Congress occasionally propose legislation to repeal the Amendment.  Even now, two hundred years after President Washington stepped down after his second term, Americans generally accept the two-term limit as an adequate amount of time for a President to serve.

Thursday, August 5th, 2010

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit www.Libertyinstitute.org

 

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