Federalist No. 48

Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 6)

6. Guest Constitutional Scholar Essayists, 90 in 90 2015, The Honorable David Eastman 2. The Constitution, 5. Constitutional Crisis – Executive Overreach, Article V, But That Has Been Found Difficult; And Left Untried (Part 6), David Eastman, Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting

Guest Essayist: David Eastman

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. This series now concludes by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints today; issue-based legislative accountability, and the calling of a convention of states to amend the United States Constitution.

A Convention for Our Time

When we survey the Constitution today, it is increasingly difficult to picture it as the splendid banner raised by Washington and his fellow delegates at the Constitutional Convention of 1787. Nor does it today call to mind the iron chains described by Thomas Jefferson when he spoke of binding men down from mischief “by the chains of the Constitution.” Instead, the Constitution hangs frayed and tattered today, a silent witness to more than two centuries of flying above our nation’s capital. Its form has changed very little since 1787, but much of the life has gone out of it. Some today have begun to ask if it isn’t time for another convention—and in no state is this idea greeted with greater enthusiasm than here in Alaska. Holding a convention would open the door to a whole series of amendments, which could add new thread to a tattered banner, and in so doing breathe new life into the Constitution. Even so, when the idea of a second convention first began to gain traction in 1788, James Madison argued that the timing of any future conventions should be chosen only with great care. Whether the timing is right for another convention is an important question, and one to which any serious student of the Constitution should give careful consideration.

Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 2) – Guest Essayist: David Eastman

6. Guest Constitutional Scholar Essayists, 90 in 90 2015, The Honorable David Eastman 1. The Federalist Papers, But That Has Been Found Difficult; And Left Untried (Part 2), David Eastman, Federalist No. 25, Federalist No. 48, Federalist No. 49, Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting

This essay continues a series exploring briefly why the Constitution is ineffective at constraining federal officials today, and highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints, both of which claim support from the Constitution and America’s Founding Fathers.

The Constitution in Tatters

As a document setting effective limits on the power of the federal government, the Constitution today lies tattered and worn, each article a testament to a battle lost and a fortification overrun (or bypassed) on the way to the consolidation of power in Washington. Some beginning students of the Constitution today are perplexed and genuinely wonder how it could be that a document that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” can today have nearly the same effect as if the Framers had instead decided “the powers not delegated to the States by the Constitution will be reserved to the federal government.” Beginning students are particularly prone to reason that if it is simply written in the Constitution, and the Constitution is the supreme law of the land, it must be so, and that’s all there is to it.

How Can Words On Parchment Constrain Executive Overreach? Guest Essayist: James D. Best

6. Guest Constitutional Scholar Essayists, 90 in 90 2015, Blog, James D. Best 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 17. Topics, Constitutional Amendment XVI, Constitutional Amendment XVI, Declaration of Independence, Declaration of Independence, Federalist No. 48, How Can Words On Parchment Constrain Executive Overreach?, James D. Best

“Governments are instituted among Men, deriving their just powers from the consent of the governed” The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights. Read more

April 30, 2015/6 Comments/by Janine Turner and Cathy Gillespie

Federalist Paper 48, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 48

These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting “Notes on the State of Virginia,” p. 195. “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. “The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. ” In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.

Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.

The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

PUBLIUS.

November 13, 2013/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison)

Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, Federalist No. 47, Federalist No. 48, Federalist No. 51, Federalist No. 84, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47. Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “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.” Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty. For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights. The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government. Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists. As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken. Montesquieu relied on his understanding of the British Constitution to explain separation of powers. Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists. That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary. Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.” (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original). He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions. He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.” Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies. (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and even an actual consolidation of the different powers; and in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

Thursday, July 1st, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 & Federalist No. 49 – Janine Turner

Federalist Paper 48, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 48, Federalist No. 48, Federalist No. 49, Federalist No. 49

WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!

I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!

In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.

A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.

We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!

I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”

The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:

“As the people are the only legitimate fountain of power and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”

What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.

Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.

“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”

ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.

Knowledge is to power what action is to results.

God Bless,

Janine Turner

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 – Cathy Gillespie

Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 33, Federalist No. 46, Federalist No. 48, Federalist No. 48

It is essays such as Federalist 48 that validate Thomas Jefferson’s famous quote about the Federalist Papers, “the best commentary on the principles of government … ever written.”

The checks and balances of our government, so beautifully constructed by the founders, are based on this axiom from Federalist No. 48:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Our founding fathers knew that separating powers into three branches of government was not enough to ensure the liberty of the people. Without “checks,” any one branch could become tyrannical.

It is ironic that the best way to accomplish separation of powers is to not completely separate the powers, but for the three branches to “share” some aspects of the powers, in order to wield checks on each other.

It is also ironic that the legislative branch, the branch closest to the people (at least the U.S. House), is also the branch most likely to overstep its bounds. The quotes in Federalist No. 48 about the legislative branch could easily have been written this year, as in 1878.

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

“The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”

“Where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”

“One hundred and seventy-three despots would surely be as oppressive as one.”

Madison points out the many reasons why legislative branches are prone to usurpations of power:

1. “Legislative power is exercised by an assembly,” …… with an intrepid confidence in its own strength.”

2. There are enough members of the legislative body to “feel all the passions which actuate a multitude,” yet few enough to actually act on those passions.

3. “Its constitutional powers being at once more extensive, and less susceptible of precise limits,” allow it to mask with greater ease “under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (The “Commerce Clause,” and the “Necessary and Proper Clause,” are perfect examples in our federal legislative branch of the “more extensive, and less susceptible of precise limits,” of which Madison speaks)

4. The legislative department has the power to tax (“access to the pockets of the people”).

5. The legislative branch has some influence over the wages of those who fill the federal government jobs (“pecuniary rewards”), and controls the budgets of the departments and agencies.

The founders knew the predisposition of the legislative body, and thus built in checks on legislative power. One of the most important checks they devised was the appointment of U.S. Senators by the State Legislatures. The removal of that “check” by the ratification of the 17^th Amendment caused a disturbance in the balance of power, and allowed the Congress to encroach past its enumerated powers further than the founders ever dreamed possible.

In a blog comment on Federalist 46 today, Andrew points out an important truth:

“A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority.”

Andrew is correct. “We The People” allowed the checks and balances to break down. It is “We The People,” who are charged time and again with sounding the alarm and protecting the Constitution.

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist No. 33 (Hamilton)

In order to protect the Constitution, and keep government in check, we must first know the Constitution and understand the principles upon which it was based.

Thank you all for a wonderful week of blog comments, and a big thank you to Professor Baker for his enlightening essay! Federalist 48 is one of my favorite papers yet.

Looking forward to Federalist 49!

Wishing you all a wonderful July 4 weekend as we celebrate the birth our country!

Good night and God Bless,

Cathy Gillespie

Saturday, July 3rd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other, From the New York Packet (Madison)

Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Federalist No. 48, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Jr. the Dale E. Bennett Professor of Law at Louisiana State University

The states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.” Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document. As Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”

The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”). Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.

Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.” In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches. Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

Then and today, there are those who view the President as the greatest danger to liberty. “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency. Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.

Publius tells us “where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jeolousy, and exhaust all their precaustions.. (emphasis added).

If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies. While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.

The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers. Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning. The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary. The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.

Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (emphasis added).

Publius’s indictment of legislative bodies drew “on our own experience.” The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”

Federalist 48 concluded “that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

Friday, July 2nd, 2010

John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.