Federalist #51 and the Separation of Powers


Power Points:




This week we cover the principle of separated powers and how they are both established and maintained in the Constitution. As with the previsou principle -- republicanism -- this principle is discussed in one of the Federalist Papers: #51. Federalist #51 is also considered to be one of the more important of the Federalist Papers. As with Federalist #10, it focuses on the difficulty of retaining a government based on popular sovreignty. While everyone agreed that it was necessary to separate the three powers of government into three separate institutions, there was concern that these powers would gradually come together into the hands of one individual or one institution. Federalist #51 provides a description of how the constitutional system prevents this from happening.

As we will see, there are two aspects of the Constitution's design that ensure that powers are in fact separated from each other and that the separation is maintained (hint: the first is elections, the second is the powers each institution is given over the other two). As with Federalist #10, the trick is to design these institutions with an understanding of human nature. Since human nature is unchanging in their opinion, it can provide a predictable mechanism for preserving a constitutional design feature. In Federalist #10 the character trait was the tendency of people to form into groups that would become antagonistic to other groups (to "vex and oppress each other"). In Federalist #51, the trait is ambition. Leaders who attain a degree of power will want to expand it. In a well constructed union, this character trait can be the mechanism that keeps each institution within its proper sphere of authority.

This will provide us an opportunity to analyze two features of the Constitutional system. The first is the electoral system and the variety of ways that each institution is connected to the electorate. The second is the system of checks and balances, and the various mechanisms that each institution is given to check the power of the other two.

Goals: After these readings, you should be able to address the following:

  • What is the purpose behind the separation of powers?
  • How are the three branches made autonomous? What makes them independent from each other?
  • Be able to describe how the members of each gain their positions.
  • How does Madison use ambition as the means by which each institution is kept in check?
  • What are the key features of the legislative, executive and judicial branches?
  • How are the members of each institution elected to office and why does that matter?
  • How are the House, Senate, Executive and Judiciary made distinct?
  • What is the Electoral College?
  • Why are federal judges appointed? Why are they given life-time appointments?
  • What checks does each institution have on the others? Which are written in the Constitution? Which are not?
  • What impact do political parties have on the separation of powers?

Federalist #51

It was generally accepted by the framers of the Constitution that governmental powers needed to be separated into different institutions in order to prevent tyranny. Powers had been separated in many different ways however over the course of history. Most often, they had been separated according to a feudal social order where the monarch, the aristocrats and the commoners were each given an institutional basis for power. Baron de Montesquieu is credited with arguing that powers ought to be separated according to the administrative functions of the state, that is, the legislative, executive and judicial functions, and that these should be designed in such a way that the institutions they were vested in would stay be balanced. One should not dominate the other two, nor should the these powers become concentrated into one institution or be influenced by one person.


The separated powers as established in the Constitution are described and outlined in Federalist Papers 47 - 51. In Federalist #47 Madison states that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny." With this being the case, tyranny can be best prevented by ensuring that these powers not become concentrated, which is easier said than done. This is Madison's task in Federalist #51. He makes the argument in two ways. First, he claims that the constitutional system makes each institution autonomous, that is independent of each other. Then he states that at least some of the powers granted to each institution are focused on keeping the other two in their places. As with Federalist #10, Madison takes a basic negative character trait and uses it to achieve a beneficial end. In this case, the trait in ambition and the beneficial end is the maintenance of the separated powers.

Here is the text of both Federalist and Anti-Federalist #51:


Madison begins by stating the important 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? And then answers the question by declaring that it can be done: by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Again, the answer lies in a proper design of the separate institutions, not just internally, but as they relate to each other.

Different Electoral Designs and Terms of Office Separate Institutions.

He begins by stating that each institution must be designed to make them as independent as possible from each other: it is evident 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. . . . all the appointments for the supreme executive, legislative, and judiciary magistrates should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. This means that each has to selected in manner that is unique and what the Constitution establishes. Each of the four institutions established in the Constitution is selected in a unique way and serves a different term length. The original scheme is as follows:

  • The House of Representatives: direct election by the people eligible to vote in state house races for two year terms.
  • The Senate: state legislative selection for one of three separate six year overlapping terms.
  • The President: an election by an electoral college selected in a manner chosen by the state legislature for a four year term

These are how the political branches are established (the ones that are meant to be responsive to a political constituency), but as we know there is one more: The judiciary. This is not meant to be a political branch. Judges are to be held to what the law requires, not what a political constituency requires. This means that judges should both know the law and have sufficient independence to apply it despite how unpopular their rulings might be. The design of
the judiciary should allow for both. Madison says the following: In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. Which means:

  • The Federal Courts: presidential appointment and senatorial confirmation to service during good behavior (life).

The various elections and appointments to office exist for a reason. They establish in fact, the autonomy of the four institutions. What moves one, will not move the others. Some institutions, the House of Representatives most obviously, are designed to respond quickly to shifts in public opinion, but others, the Federal courts for example, are not. This is to ensure that sudden, capricious shifts in public opinion will not lead to sudden capricious shifts in public policy. The goal is to ensure that existing policy is stable. More importantly, it is also meant to ensure that each of these institutions will not eventually be brought together by the same impulse from the electorate. If each institution was elected in the same way by the same group for the same term, then any distinction between them would soon be erased and their power would begin to be concentrated. A tyrannical majority could then accumulate power and persecute the minority of their choice. This is a criticism we might wish to have about Texas government, where each of the governmental institutions is elected to relatively short terms of office. This is a result of the Jacksonian spirit contained in the governing structure, but that spirit has also contained a willingness to use government as a tool of preserving a racial hierarchy.

Ambition Fuels the Checks and Balances.

But ensuring that each is independently elected is only the first step in separating powers. The powers can still become concentrated after the fact. He then turns to how these institutions can be designed so their powers can remain separated. As with Federalist #10, he looks to human nature for the solution: . . . "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 defense 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."

Ambition is both the problem and the solution to the problem. We can expect that people that seek power in each of the governmental institutions may well seek to expand upon the power they have attained. This can be a fatal problem for the Constitutional order unless that ambition can be channeled in such a way as to check the ambition coming from other sources. This is a cynical solution to be sure because it assumes the worst about human nature, but it is realistic: "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."

What this tells us is that the design of the Constitution is not based simply on abstract principle and a sense that human nature can be improved. It is based instead on the expectation that base motives will drive leaders, but the predictability of this behavior can allow it to be incorporated into the constitutional order. The powers granted to each institution are designed to ensure that the ambition fueling one institution will check the ambition fueling the other two.

The Special Danger Posed by the Legislative Power in a Republic.

Madison challenges the assumption that the three governmental powers are equal in a republic. In Federalist #48 we are told that the executive power is especially dangerous in a hereditary democracy, but in a republic the people's connection with the legislative department makes that department especially powerful, and more prone to be the source of tyrannical rule: "In republican government, the legislative authority necessarily predominates. The remedy for this inconvenience 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." The bicameral system places further limits on the ability of the legislative branch to dominate the government and usurp the powers of the other two institutions.

As with Federalist #10, the solution to concentrated tyrannical power is the division of power into many small components that will then be unable to combine their strength and allow a majority interest to tyrannize minority interests: "In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government." The more interests, the less opportunity for concentrated power.


A Slightly More Detailed Description of the Three Branches.

Federalist #51 gives us an opportunity to further explore the nature of the three governing institutions that are vested with the legislative, executive and judicial powers.

- usconstitution.net: Separation of Powers.
- Wikipedia: Separation of Powers.

The Legislature: The Lawmaking Branch

Brief Notes:
  • The legislature is the democratic branch, meaning it is the branch that is to legitimize the governign system, but it is prone to mob rule.
  • It has the power of the purse: it establiches tax systems and sets tax rates and distributes revenue.
  • It has law making power.
  • It represents constituents -- provides constituency service.
  • It oversees the implementation of laws.
  • It checks the executive and judicial branches.

Legislatures have a special status, especially in American history, due to its close connection with the people. As legislatures developed over time in Britain, they acquired "the power of the purse." This means that they must set and approve taxation systems and tax rates, approve and appropriate the allocation of funds, and investigate the spending of funds. These powers were vested in the United State and Texas legislatures in their respective constitutions. In a republic, the legislature sets the policy that is then implemented by the executive and adjudicated by the judiciary.

The legislatures is the branch that represents the electorate. In a democracy this is taken to mean that they transfer the preferences of the electorate into public policy. This sounds like an easy enough function, but as we know from Federalist #10, the nature of the connection is important. A tightly controlled connection between the electorate and the legislature offers the opportunity for the passions of the multitude to dictate policy, but too many barriers between the electorate and the legislature can allow for corruption and tyranny. The bicameral legislature can be seen as a compromise between the two. The electoral design of each largely conditions how each is connected to their constituents

Legislative Elections:

The House of Representatives, Direct: The House of Representatives is the people's branch, and is designed to be closely connected to the population. A direct election is intended to provide this connection. As originally designed, those eligible to vote in the lower house in the state are eligible to vote in elections to the U.S. House of Representatives. They vote directly for the candidate who then serves for a two year term. Though the Constitution says nothing about districts, the House has evolved into an institution where each member represents one of 435 districts spread across the country. This makes them subject to local interests.

The Senate, Vote in State Legislatures (original): The Senate is (was) designed to be responsive to the interests of states. Selection by state legislatures was the key mechanism for ensuring they would be. As originally designed, the state legislatures selected Senators to one of three classes that served six year overlapping terms. Senators were then subject to the interests of the states as defined by state legislatures. Over time, as business groups grew more powerful, suspicions emerged that Senators were merely pawns of corporate interests. A movement developed to directly elect Senators, and was eventually added to the Constitution in the Seventeenth Amendment. Senators are still responsive to state interests, but this time as it is defined by the electorate, not the state legislature.

- FindLaw: Article One of the U.S. Constitution.
- Wikipedia: Article One of the U.S. Constitution.

The Executive: The Implementing Branch.

Notes:
  • It is the autocratic branch, meaning it is designed to efficiently implement the laws, but can be arbitrary in its actions.
  • It has the power of the sword
  • It implements the laws
  • It checks the legislative and judicial powers.

The executive power historically has been the most problematic of the governing powers because it is the only one deliberately backed up by force. At one point in British history or in all of history, the monarch not only contained the executive power, but the legislative and judicial power as well. This allows for tyranny, since the executive can pass and interpret laws according to its discretion. Over the course of history, the legislative and judicial branches have become independent. Federalist #51 describes, loosely, how this is done in the American system and how the relative independence of these institutions allows for checks on each other.

A key dispute about the design of the executive is whether it ought to be headed by one person or a group of people. A singular executive was favored by Alexander Hamilton who was concerned about the effectiveness of governing institutions, especially the executive branch. He argued that an executive headed by one person would be energetic and that energy was the leading characteristic of good government. Opponents argued that this design would facilitate tyranny and believed instead that executive power should be split among a variety of individuals. A plural executive would be less likely to turn tyrannical, but would be less effective in implementing the law. Pick your poison. The U.S. Constitution provides a singular executive while the Texas Constitution, reflecting additional fears of governmental power in the state, opts for a plural executive.

The executive is unique in the sense that it is divided into two levels, one political and the other professional. The political part of the executive is the president and all the officials associated with him or her. These individuals are referred to as the White House, the Cabinet, and the Executive Office of the President. They come and go with each administration. The professional part of the executive branch is the bureaucracy. These are the long term civil servants who in fact implement the laws passed by the legislature. The discretion given the bureaucracy is often controversial. Congress habitually delegates decision making to the bureaucracy which has the power to pass the rules needed to take otherwise vague legislation and make it clear enough to implement.

Election:

President (Electoral College): The Electoral College was originally intended to allow the electorate within each state to select a group of individuals who would then determine among themselves which individual was likely to be the best chief executive. Originally the electors would cast two votes (for individuals who were not from the same state) and the person with the most votes, providing it was a majority, would be president, the person with the second most votes would become vice-president.

Several considerations entered into this decision. The general population was not considered capable of making the decision, not just because they lacked the intelligence or virtue to make a decision that was not tied into their self interest (though that was assumed to be true) but the average person was not in a position to determine who the best candidates might be since it was difficult to get enough information about national figures to make the determination. Perhaps more importantly, a direct election or selection by a state legislature would inevitably tied the presidency into either the House or Senate, which could lead to tyranny. An Electoral College, since it was a temporary institution, could not engage in collaborations with pre existing institutions in order to make a decision satisfactory to legislatures. The Electoral College meets for one purpose only and then disbands.

The original design of the Electoral College was modified very quickly. Political parties emerged and began promoting candidates. In the election of 1796, the leaders of the two respective parties became president and vice president, which was not an optimal situation. The Twelfth Amendment was ratified to correct for this development. Electors would cast a vote for a president and vice-president running as a team. This is still in operation. Since political parties have increased their control over elections, they have essentially taken over the process by which people are nominated to the Electoral College. Each state has the authority to determine how they do so, but in Texas, each party nominates members to the electoral college. Two are voted in statewide (for the two seats that correspond to the two Senate seats), and the rest are elected by each of the House districts in Texas. The party whose candidate wins the popular vote for the presidency in the state, has its nominees accepted to the Electoral College. Since they are party functionaries, they will vote for the party's candidate, though they are not required to. In some states the electors are in fact required to vote for the state's popular vote winner.

- FindLaw: Article Two of the U.S. Constitution.
- Wikipedia: Article Two of the U.S. Constitution.
- Federalist #68: The Mode of Electing the President.
- Wikipedia: The Electoral College.
- NARA: The Electoral College.
- FEC: The Electoral College.
- Fairvote.org: Faithless Electors.

The Judiciary: The Adjudicating Branch.

Notes:
  • It is the oligarchic branch, meaning it is designed to ensure it contains people of knowledge, but can be biased in its decisions.
  • It has the power to adjudicate, that is, to reconcile disputes in society. These disputes can be between private individuals or between private individuals and the government.
  • It interprets statutory and constitutional law, which provides both its authoritative meaning.
  • It checks the executive and legislative branches with the power of judicial review, which was not written in the Constitution.
  • Its power stems from its independence
  • On the national level, it is the only appointed branch.
As with legislatures, the rise of judicial institutions have been essential in the drive to reduce the discretionary power of the executive. The principle factors in allowing the judiciary to limit the executive has been their competence and their independence. Currently the judiciary performs three basic functions. First, it provides a forum for the reconciliation of disputes in society. These can be disputes between an individual and the state, in the case of criminal law, or between two individuals, in the case of civil law. In either situation, plaintiffs can take their dispute to a controlled environment where disputes can be resolved according to pre set procedures. Second, the judiciary interprets the law, be it statutory, common, or constitutional. The court has therefore the final word on what terms like "commerce" and "necessary and proper" mean. Finally the judiciary can act as guardian for the Constitution with its power of judicial review. It is up to the courts to decide whether a legislature has over-stepped its bounds when passing a particular law, or whether the executive, or the judiciary itself violated procedural rules in how it implemented the criminal justice process against a particular defendant.

Appointment:

The federal judiciary is unique in that its members are the only ones of the three major institutions that are appointed, and not elected. Madison lays the reason out clearly: In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

The appointment process is designed to ensure that judges will be qualified. Life-time tenure is required to ensure that those appointees will be independent.

- FindLaw: Article Three of the U.S. Constitution.
- Wikipedia: Article Three of the U.S. Constitution.
- CRS: The Supreme Court Appointment Process.
- Senator Patrick Leahy: The Appointment Process.

Checks and Balances Elaborated.

The Legislature checks the Executive by
- Impeachment (House)
- Trial of Impeachment (Senate)
- Overriding Vetoes
- Approval of appointments and treaties (Senate)
- Approval of judicial and executive appointees
- Yearly sessions mandated by Constitution

The Legislature checks the Judiciary by
- designing the courts, which includes creating inferior courts
- approval of federal judges
- impeachment of federal judges
- initiation of constitutional amendments
- rewriting statutory law to negate Supreme Court decisions.
- determination of jurisdiction of federal courts

The Executive checks the Legislature by
- vetoing bills
- the state of the union address
- Vice President is President of Senate
- Calling of Emergency Sessions of Congress
- Authority to force adjournment of Congress when both houses cannot agree when to do it
- the ability to make recess appointments

The Executive checks the Judiciary by
- Appointment of judges
- power to pardon

The Judiciary checks the Legislature by
- Judicial Review of Statutes

The Judiciary checks the Executive by
- Judicial Review of executive decisions
- lifetime tenure
- Chief Justice presides over trials of impeachment

- usconstitution.net: Checks and Balances.

Parties and the Checks and Balances

As vitally important as the checks and balances are, they do create a huge problem for government. How in fact can a people successfully and effectively govern themselves given that so much of the structure of government is about limiting its capacity to do so? It is not unusual for people to complain about the slow nature of governing without taking into consideration that this is a consequence of checks and balances. The entire constitutional system is intended to slow down the governign process. This is based on the assumption that rapid change may be short-sighted and ultimately harmful to the preservation of the republic.

Separated powers and checks and balances might actually minimize the very idea of democracy by making it difficult not only for people to impact the direction government takes, but making it difficult to determine who in fact is responsible for what. One of the arguments made in favor of political parties is that they can overcome the checks and balances if they are able to control the political branches and, overtime, influence the composition of the judiciary as well. This assumes that parties can do so of course, but if they can, partisan control actually enhances democracy by giving voters a clear choice between alternatives, and a reasonable idea of which party is responsible for what.

The Responsible Party Model was developed to promote the idea that strong political parties should promote clearly distinct agendas in order to give the population a choice between clearly defined alternatives. In a sense, this is what the Republican and Democratic Parties do, within limits as we will see when we discuss parties in a future section.

The Separated Powers and Checks and Balances in Texas

As with other states established after the ratification of the U.S. Constitution and the influence of Jacksonianism, the Texas Constitution establishes a governing system that is similar in form to the national system, but is tied much more closely to the electorate. As menitoned in the previous readings, all governing institutions are elected in Texas. This means that powers are not separated in the same manner in the state as they are nationally.



Past Written Assignments:
1 - Fully outline the argument in Federalist #51. What are the main points Madison is making? How is human nature integrated into the Constitutional system?
2 - Note the following sentence from Fed 51: "The interest of the man must be connected with the constitutional rights of the place." What does this really mean? Look through Articles 1,2, and 3 of the U.S. Constitution and try to determine how the internal structure of each branch reflects the interests of the people who will occupy them.
3 - This is a three part question, so you will have to write more than 150 words on it. Using current news events, describe how each branch of government has recently resisted the encroachments of the other two.
4 - Fully detail the argument in Federalist 51 and contrast it with the argument in Anti Federalist 51.
5 - In the Wikipedia link on separation of powers you will find an outline of the nature of legislative, executive and judicial powers. Detail each and describe the conflicts associate with them.
6 - Fully outline how each of the three institutions checks the powers of the others. Madison tells us that ambition is designed to counteract ambition. State how this might be the case.
7 - Fully explain the problems associated with concentrated political power, and provide examples. Use either news sources and/or hypothetical examples.
8 - Outline the argument made in Federalist #51.
9 - Try to explain, using the current political landscape, how the different means of selecting people to the different governmental institutions separates them. Are they in fact separate or not?
10 - Again, using current news sources, find examples of each institution checking the others.
11 - Federalist #51, which describes the constitutional principle of separated powers, states that each of the three institutions has to be autonomous, that is, independent of each other. One way this is done is through the electoral system. How? Describe how the complex electoral system in the U. S. makes each institution independent from each other.
12 - Madison tells us that the internal design of each institution provides the means by which each institution can resist the incursions of the others. He is referring to the checks and balances. How do these powers maintain the independence of each institution?
13 - Federalist #51 allows us to look more closely at the three governing institutions established in the U. S. and Texas Constitutions. Detail each.