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Federalist No. 50

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Periodic Appeals to the People Considered
From the New York Packet.
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. ” This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State.

Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.

Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

PUBLIUS.

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Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges!   It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49.  Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution.  In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason.  Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’  final result:  Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

In practice, what is our country’s history of amending the Constitution?  Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country.  Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.”  Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

 

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Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges!   It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49.  Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution.  In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason.  Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’  final result:  Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

In practice, what is our country’s history of amending the Constitution?  Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country.  Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.”  Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

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Federalist Paper No. 50 – Janine Turner

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Howdy from Texas. Cathy and I are so excited that we have had so many contest entries! I thank all of you who have actively participated in spreading the word about our We the People 9.17 Contest.

I encourage all of you to spread the word about our necessity as citizens to know the United States Constitution and our rights!

I do it throughout the day, with these essays but also I take advantage of every moment to share my enthusiasm. Yesterday, I was quizzing the guys at Starbucks about the Constitution and the Bill of Rights. It was amazing to watch their wheels turn as they tried to remember. They were clear on a few things. I promptly gave them my RAPPS acronym about the First Amendment: Freedom: of Religion, to Assemble, to Petition, of Press and of Speech! I pulled out my Constitution App on my phone and we continued to talk about other aspects of the Constitution.

At my nephews 18th birthday party last night, I asked the young 17 year old next to me if he knew about the United States Constitution. He seemed a bit dazed and confused. I handed him a business card with our website and told him that he was the future of the country and he was going to HAVE to know his rights!!! ☺

So see, all day long we can plant the seeds. Someday, a few years from now, that young man will remember the “crazy, Constitution lady” and will reflect, when his rights are impeded and his country is broke, “oh, so, THIS is what she was talking about!”

We MUST educate our children. They are the future “genius of the people” and they must have the knowledge of our country’s foundation and thesis in order to take action.

As John Adam’s said, “Liberty cannot be preserved without a general knowledge of the people.”

I say, “Knowledge is to power what action is to results.”

So today’s reading was fascinating, as always.

In Federalist Paper No. 50, James Madison talks about how reason was, “distracted by the rage of the party.”

This is certainly relevant to today. Our representatives lack the cool, calm, pacific stage of reason that reaps crucial objectivity; an objectivity that holds within its breast the future of our country and the future of our children’s lives.

However, at times, the salt and pepper of parties is a necessary seasoning.

In Federalist Paper No. 50, James Madison says, “an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.”

If there is no diversity of thought then that means the singular thought is under the persuasive power of tyranny.

James Madison thus concludes that diversity of party is a necessity, though passions should be unified in purpose for a continual, everlasting respect for the Constitutional constructs and for the governing of the people and preservation of liberty.

Being a realist, however, he recognized that passions of men die-hard. Thus, the men of Congress, who are intrinsically involved in the process, the predicament, may not be the best to resolve the situation regarding the Constitutional violation assessment or the Constitutional amendment process.

He then calls on outsiders who are educated on the constructs and crisis at hand and thus better able to serve the cause because they are removed from the passions of the legislature. Hence, a convention of the people may at times be the answer such as the Constitutional Convention of 1787 which was made up of men who were not all necessarily at the time employed by Congress.

This leads us back to James Madison’s words in Federalist No. 49, “The people are the only legitimate fountain of power.”

It is dangerous to think about calling a Constitutional Convention because of the dangerous route it may take. An honest assessment may turn into to a stranglehold by attorneys, and men of disrepute, who could swerve the Convention away from its original intent. Yet, it is empowering to know that the option is available.

Knowledge is to power what action is to results.

God bless,

Janine Turner

Tuesday, July 6th, 2010

 

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Federalist No. 50 – The Same Subject Continued: The Total Number of the House of Representatives (Madison or Hamilton)

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Guest Essayist: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

The authorship of Federalist No. 50 is disputed.  Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution.  Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.”  The key to the opening is the last capitalized phrase.  The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.

The author used the State of Pennsylvania as an example to prove his premise.  Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault.  But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.”  Their conclusions were often clouded by passion and their decisions ignored by the State government.  The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.”  States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”

The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself.  The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system?  That was the heart of the anti-federalist critique of the federal judiciary, for example.  Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.

One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer.  The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution.  He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….”  Perhaps the Old Whig was correct.  Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11th and the 22nd, limited the power of the central government.  Others such as the 14th, 16th, and 17th, increased it exponentially.

Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified.  Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law.  The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked.  The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority.  If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work?  The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers.  He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.

Tuesday, July 6th, 2010

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Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, From the New York Packet (Hamilton or Madison)

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

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

  •        “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
  •        “The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
  •        “Ambition must be made to counteract ambition.”
  •         “The interest of the man, must be connected with the constitutional rights of the place.”
  •        “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
  •         “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”
  •         “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

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

 

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