Federalist 47, 48, 51 AnD Checks and Balances Discussion and Seminar

Checks and Balances

Federalist 47 “The separation of powers protects liberty” Criticism and Madison’s Response: Critics alleged “that the new document does not adhere to the above maxim” (motto) Antifederalists say the Constitution does not protect liberty. Because the “legislative, executive, and judicial powers are intertwined.” Madison response: “…separation of powers does not mean total separation. One branch cannot completely control another. Overlapping powers is necessary.

FEderaLIST 47 This paper examines the separation of powers among the executive, legislative, and judicial branches of government under the proposed United States Constitution. It is titled, "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.“ Madison supported a system of checks and balances quite similar to checks and balances the former thirteen colonies had created in their state constitutions. Madison tried to enlist the support of the young states by analyzing their individual constitutions. He finds that "there is not a single instance in which the several departments of power have been kept absolutely separate and distinct."

FEDERALIST 48 Main argument: “Creating ‘parchment barriers’ in the Constitution won’t be enough to maintain separation of powers and the liberty protected by separation of powers.” “Madison feared that in a government founded on popular sovereignty, the legislative branch will be the most powerful.” In order to practically maintain the branches as "separate and distinct", they must have "a constitutional control" over each other. The paper offers a number of reasons why legislative over-reaching is more likely in a "representative republic", as distinct from other types of government. These reasons include the claim that the legislature 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" and that its powers are both "more extensive, and less susceptible of precise limits".

FEDERALIST 51 Main argument: “Ambition must be made to counteract ambition” Madison’s reasoning: Each branch Has its own will, desires, agenda Independent (as possible) Ability to resist encroachment from another branch Ex: Legislature – divided into two houses Executive – veto over legislation

FEDERALIST 51 "In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, 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.... Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted.“ -James Madison

FEDERALIST 51 Madison's key point is that the members of each department should be as little dependent as possible from the members of the other departments, and to stay independent, their own department must not encroach on the others. To secure these ends, Madison suggests that "the great security against a gradual concentration of the several powers in the same department" is to enable each department (or the leader of the department) to fend off attempts to encroach upon each other's departments' government.

According to Madison, what was the meaning of the following sayings by Montesquieu: “there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates”; “if the power of judging be not separated from the legislative and executive powers”? “…where the whole power of one department is exercised by the same hands which posses the whole power of another department, the fundamental principles of a free constitution are subverted…” Separation of power is essential for when one branch of government holds all of the power over the other branches of government it weakens or undermines the basic philosophy of a free constitution.

The Power of the Congress Madison expressed the concern about one particular branch having excessive power; explain why and how this was resolved The legislative branch tends to dominate in a republican form of government, therefore, the legislative branch needed to be divided – thus we have the Senate and the House of Representatives. Is this sentiment still true today? Is the Congress the most powerful branch of government still? The President sure does an awful lot: a lot more attention to election in 2008 and 2012 than 2010. The Congress still must write and pass every law, has the power of the purse, etc.

Marbury v. Madison Judicial Review Remember these main points: Constitution = supreme law of the land Supreme Court’s duty = “to interpret the Constitution & say what the law is” “Supreme Court’s interpretation of the Constitution binds both Congress and the President” therefore, “the Supreme Court has the power of judicial review over Congress and the President” but, “the Court should exercise judicial self-restraint in cases involving political questions”

DAVID BRIAN ROBERTSON The CONSTITUTION AND AMERICA’S DESTINY Get together in small groups an answer the following questions: How did America’s founding father’s successfully change the path of America’s destiny with the writing of the Constitution? How is America’s government “Hard to use?” How is that relevant in this class? How is this a good thing and a bad thing? What importance does Robertson place on Compromise? How does this view of the Founding Fathers, as great compromisers, contrast with their portrayal today? Look into James Madison’s character. How does the “character” of Madison figure into the foundation of our government? “Instead of changing our Constitution, American’s must learn to use it better.” What does that mean? Why would Robertson say that?

LARGE GROUP DISCUSSION Answer small group questions: Get together in small groups an answer the following questions: How did America’s founding fathers successfully change the path of America’s destiny with the writing of the Constitution? How is America’s government “Hard to use?” How is that relevant in this class? How is this a good thing and a bad thing? What importance does Robertson place on Compromise? How does this view of the Founding Fathers, as great compromiser, contrast with their portrayal today? Look into James Madison’s character. How does the “character” of Madison figure into the foundation of our government? “Instead of changing our Constitution, American’s must learn to use it better.” What does that mean? Why would Robertson say that? Think about Locke and Hobbes: what would they say about our “Hard to Use” government? What parts of our government would Locke and Hobbes be a fan of? How does our Constitution’s overall structure help deal with faction?

Written Reflection How can we make our government easier to use? I want you to think of at least one way that we can actively make government a more efficient tool for the populace. Consider new technologies, changes you would make to our Constitution, etc. For example, would you allow people to vote online? Would you make voting a multi-day thing instead? Would you encourage popular vote of the President rather than the Electoral College? Would you use national referendums for big issues like gay marriage or gun control? ANYTHING YOU WANT! BE CREATIVE!