1. GOVT 2305 Federalist #51 and the Separation of Powers

2. In the previous set of slides we looked at republicanism, the first of several principles embedded in the U.S. Constitution. As we know, republicanism is the fancy name for indirect democracy, and that the principle is meant to ensure the stability of the governing system despite its basis on the people.

3. In this set of slides we look at a second principle within the Constitution, the separated powers.the separated powers

4. The term refers to the separation of the three functions of government into three separate institutions: the legislative, executive and judicial. We’ve hit this point several times so it should be familiar to you by now.legislative executivejudicial

5. We will also look at the checks and balances, which is the method maintains the separated powers.

6. Remember that concentrated power leads to tyranny. If we can keep governmental powers separated, we are free from tyranny. But as a consequence we have to endure inefficiency in governing. You can’t have everything.

7. Here’s Madison’s commentary from Federalist 47: “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.”Federalist 47

8. We will read through Federalist #51, which explains the purpose behind the separation and the logic of the checks and balances. If you are ambitious, here is the text, here is the commentary on Wikipedia, and here is a summary of Federalists 47 – 51. textcommentary on Wikipediaa summary of Federalists 47 – 51

9. For past blog posts on these subjects, click on the following: Separated Powers. Checks and Balances. Appointments. Federalist 51. Separated Powers Checks and Balances Appointments Federalist 51

10. A little history (a reminder) might help remind us about the importance of balanced governments.

11. As we’ve seen from previous lectures, over the course of Anglo-American history, a degree of balance has emerged between governing institutions. That was the consequence of the rise of the legislature and its ability to limit the arbitrary actions of the monarch.

12. Balanced governments existed in ancient Rome as well as Britain. The links take you to the constitutions of each government.RomeBritain

13. The Roman Republic contained powers clearly divided into different institutions. Recall that the Roman empire began when the power of the Senate was forcibly reduced by Augustus Caesar.

14. The British government is divided as well, but with a difference. The British Constitution divides power is among the different classes in society. Each is connected to a separate institution.

15. Monarchy – The Royal Family Aristocracy – The House of Lords Commoners – The House of Commons

16. Enter the Enlightenment

17. Baron De MontesquieuBaron De Montesquieu was a proponent of a governing system separated according to the functions of government.

18. His writings were as influential as any other author in colonial America. Read here for background on separated powers from findlaw.com. (and of course Wikipedia) Read here for background on separated powers from findlaw.comand of course Wikipedia

19. The following quote is from The Spirit of the Laws, one of his more influential books: “The administrative powers were the executive, the legislative, and the judicial. These should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two, either singly or in combination.”The Spirit of the Laws

20. Remember that in our walk through British history in the section on natural rights we looked at how legislative power grew overtime to the point where it could limit executive power.

21. In the American system, a balanced government means that the three functions of government are vested in three separate institutions, and the balance is maintained by giving each the power to resist the encroachment of the other two.

22. The Trick: How do you do this?

23. How are powers separated and how are they kept separate? That is the subject of Federalist #51, written again by James Madison.Federalist #51

24. I’d recommend that you take a moment to read through the document. As with Federalist #10, it can be a bit tough, but give it time and attention and the argument should make sense.

25. According to Madison the first thing is to ensure first that each institution “has a will of its own.” This means they are autonomous, or independent. One should not be able to control the others.

26. This explains why each institution is described and outlined in clearly distinct articles in the Constitution. Let’s take a moment to review them. You might want to open each article in the U.S. and Texas Constitutions and give them a quick read.

27. Each article begins with a vesting clause which states that each power is “vested” in a distinct institution.vested

28. What does a vesting clause doWhat does a vesting clause do? “Vested clause is a clause that grants authority. This clause is included under the constitution to authorize the main branches of a government such as the legislative, executive, and the judiciary, to Congress, the President, and the Supreme Court respectively.”

29. But notice that there is no clear definition of what each of these powers entails. This is a critical omission. One of the things the Supreme Court has to reconcile from time to time is the precise definition of each power, as well as whether each institution is limited to that one power, or whether other language in the Constitution allows each institution to have a sliver of the powers of the other two.

30. Let’s walk through the articles. I added photographs of the buildings associated with each institution to demonstrate that the document did indeed allow for a more powerful government than existed under the Articles of Confederation.

31. The Legislature Article One of the U.S. Constitution Article Three of the Texas Constitution Article One of the U.S. ConstitutionArticle Three of the Texas Constitution

32. Section 1. “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”Section 1

34. Basic Facts: - It is the democratic branch, it is closely tied into the electorate. - It has the power of the purse. - It makes laws - It represents constituents - It oversees the implementation of laws - It checks the executive and judicial branches

35. The Executive Article Two of the U.S. Constitution Article Four of the Texas Constitution Article Two of the U.S. Constitution Article Four of the Texas Constitution

37. Section 1Section 1. “The executive Power shall be vested in a President of the United States of America.”

38. Notice that the terminology does not contain the phrase “herein granted.” This matters. Some argue that this means that executive powers are intended to be open ended.

39. Basic Facts: - It is the autocratic branch, on the national level it is headed by a single person (to provide “energy” in the executive), plural on the state level. - It has an elected component, and a professional component: The bureaucracy. - It has the power of the sword - It implements the laws - checks the legislative and judicial powers. - the most feared branch – military king?

40. The Judiciary Article Three of the U.S. Constitution Article Five of the Texas ConstitutionArticle Three of the U.S. ConstitutionArticle Five of the Texas Constitution

42. Section 1. Section 1. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

43. Basic Facts: - The oligarchic branch - reconciles disputes in society - the disputes can be criminal and civil - trials and appeals - interprets statutory and constitutional law - checks the executive and legislative branches with judicial review

44. The United States Constitution does not clearly state that it is a system of separated powers. It simply establishes that it is such a system. The Texas Constitution does.

45. THE TEXAS CONSTITUTION ARTICLE 2. THE POWERS OF GOVERNMENT Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

46. Notice that the language in the Texas Constitution states that each institution is to be completely distinct. This is a source of controversy. Are they in fact meant to be fully distinct, or are they to overlap?

47. Do we have a system of rigidly separated powers, or a system containing separate institutions sharing powers?

48. Regardless, we now turn to the question: How does the constitutional system establish and preserve the separation? That’s what Federalist #51 attempts to explain.

49. Just because this separation is written out in the Constitution does not mean that these institutions will stay separated. They first have to be designed so that they are truly distinct.

50. This is done by ensuring that none of these institutions can control the appointments of the others. This means that each must have its own unique way of getting elected.

51. That’s what Madison is trying to argue in Federalist 51.

52. The first step is that each institution “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.”

53. Which means that “... all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.”

54. The people in each institution have to be selected in distinct ways. Since there are four institutions established in the Constitution, that means there are four ways of placing people in each position.

55. House – Election by the People Senate – Selection by State Legislatures President – Electoral College Federal Courts – Presidential Appointment followed by Senatorial Confirmation.

56. As a consequence, each institution is responsible to a different constituency. If they were all responsible to a single constituency that entity could be the force that drives these powers together, which can lead to tyranny.

57. Tyranny occurs when one controls the others; when these institutions are no longer each independent.

58. Note that the judiciary is different since it’s members are appointed to office. Madison explains that this is to ensure that its members are qualified for the office. I suppose we are to then assume that no qualifications are necessary for those positions – or at least that the electorate is in a position to judge those qualifications, but not those of judges.

59. “Some deviations... from the principle must be admitted. 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.”

60. By the way, this was the type of reasoning that upset the Anti- Federalists and made them think that the Constitution was established as a mechanism for limiting their impact on government. They were not irrational to think so.

61. Also note: The 17 th Amendment altered this relationship by making Senators subject to the direct preferences of the people of the states, as are House Representatives. The states no longer had a direct connection with the national government. One question that we could ask is whether this reduced the independence that the Senate had from the House.17 th Amendment

62. And again, note that in Texas all of these positions are elected by the people. We will reflect on this later, but consider for now whether this allows for the powers to become concentrated.

63. As has been discussed before, Texas’ design reflects that greater faith the drafters of the Texas Constitution had with the decisions of the electorate. It embodies an expansion of democracy that occurred as the country moved westward.

64. That’s the positive spin. The negative spin is that it allowed the majority to continue tyrannizing the minority.

65. In addition to the different means for getting elected, each institution also has different terms of office. This strengthens the separation.

66. House – 2 year term Senate – 6 year overlapping terms President – 4 year terms Federal Courts – service during good behavior. Generally referred to as lifetime tenure.

67. Notice that the judiciary has lifetime tenure. This is to ensure that the judges will not be controlled by the executive branch.

68. As a consequence of this design, at no point can the electorate, or any other entity, remove the entire government at once. It is immune from the direct influence of the electorate, or of the state legislatures.

69. The pressures that directly impact House Representatives cannot have the same impact on Senators or the President. And they can never have a direct impact on the Judiciary, at least on the national level.

70. This enhances independence. If properly designed, the result will be four institutions that can act independently.

71. The purpose is to ensure that drastic shifts in public opinion will not lead to drastic changes in public policy.

72. But steady changes in one direction election after election can have an impact on public policy. Attitudes about race and gender are good examples.

73. Again, Texas is a bit different. Terms lengths vary, but are shorter than national terms of office and thus the occupants of the office are more controllable by the electorate.

74. House – 2 year term Senate – 4 year overlapping terms Governor – 4 year term Courts – 6 year term

75. A third factor establishing the independence of each institution is that neither has full control over the salaries of the other two.

76. “It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.”

77. But just because the institutions are designed to be independent does not means that each would be immune from attempts by the others to take them over. Madison assumes that these attempts would be inevitable. This was the point of Fed 51.

78. “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?”

79. How do we keep them separated?

80. “The 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 the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

81. An external power cannot be expected to solve the problem since that institution would then have the opportunity to become tyrannical. The answer lies in how powers are arranged in the institution.

82. Some states had Councils of Revisions that would over see the laws passed by the legislature to see if they were in keeping with their Constitutions. A similar council was proposed but defeated in the convention partly due to suspicions that this institution would become tyrannical.Councils of Revisionsproposed but defeated in the convention

83. Whoever, or whatever, controls the councils of revision would control the government. That leads to tyranny. The better option was to solve this problem internally.

84. “... 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.”

85. The answer lies in what powers each institution has to either resist attempts on the part of the other to control them, or to in fact attack the other two. These are the checks and balances.checks and balances

86. Click hereClick here for a list of the various checks.

87. “The interest of the man must be connected with the constitutional rights of the place.” We assume that “interest of the man” refers to individual ambition.

88. What this means is that each institution is set against the other two. This is the logic underlying the checks and balances. The ambitions of the people in each institution would be the driving force checking the ambitions of the people in the other institutions.

89. An ambitious leader in one institution will not necessarily be satisfied with controlling only that institution. What, for example, is to prevent the president from taking over the legislative and judicial branches?

90. “Ambition must be made to counteract ambition.”

91. He is taking – as in Federalist #10 – a realistic look at human nature. Leaders are by definition ambitious.

92. “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?”

93. “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.”

94. “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

95. Notice again, as in Fed 10, he notes a negative but inevitable aspect of human behavior and uses it to solve itself. The ambitious president is thwarted by the ambitious legislator and vice versa.

96. The point is that many of the powers that are written in the Constitution are focused on establishing and maintaining balance.

97. A few examples to make the point:

98. Yearly sessions of Congress mandated by Constitution and they adjourn themselves. The president cannot prevent Congress from meeting – and potentially controlling him – or adjourn Congress.

99. National Judges and Justices serve during good behavior, which frees them from control by the executive.

100. The Legislature cannot increase or decrease a president’s pay. They cannot use pay as a toll of bribery or punishment.

101. Judges and Justices can have their pay increased (they serve for life) but it cannot be decreased.

102. Those who hold an office in one institution cannot hold one in another.

103. Altogether these design features are meant to ensure that the three institutions are autonomous.

104. The Anti-Federalists did not believe that these limits would be sufficient to check national powers.

105. Anti – Federalist #51 Anti – Federalist #51 Do Checks and Balances Really Secure the Rights of the People?

106. Let’s turn to an overview of the checks and balances on the national level. A list from wikipedia. A list from wikipedia

107. Note that some of these powers are established in the Constitution, but others some have evolved over time. Judicial review and oversight authority are two powers that were obtained over time by the judicial and legislative branches.

108. Legislative Checks on the Executive

109. ImpeachmentImpeachment (House)

110. Trial of Impeachment Trial of Impeachment (Senate)

111. Over-Riding Vetoes

112. Tax Bills must begin in the House

113. Control over Appropriations

114. Approval of Treaties Approval of Treaties (Senate)

115. Approval of judicial and executive appointees Approval of judicial and executive appointees (Senate)

116. Oversight Authority Oversight Authority While not mentioned in the Constitution, it has always been understood that Congress can investigate actions of the other branches.not mentioned in the Constitution

117. Also note that the House and Senate can check each other

118. Executive Checks on the Legislature

119. The State of the Union Address

120. Vice President is President of Senate

121. Calling of Emergency Sessions of Congress

122. Authority to force adjournment of Congress when both houses cannot agree when to do it

123. Recess Appointments

124. The Veto

125. Rulemaking Rulemaking When Congress passes legislation establishing executive agencies, these agencies can pass rules, which carry the weight of legislation. Though are questions whether Congress can delegate legislative authority.Though are questions whether Congress can delegate legislative authority

126. Legislative Checks on the Judiciary

127. Designing the courtsDesigning the courts, which includes creating inferior courts and determining how many justices serve on the Supreme Court.

128. Determining the jurisdiction of federal courts, what they can and cannot rule on.jurisdiction of federal courts

129. Approval of Federal Judges

130. Impeachment of Federal Judges

131. Rewriting statutory law to negate Supreme Court decisions.

132. Initiation of Constitutional Amendments to negate Supreme Court decisions.

133. Judicial Checks on the Legislature

134. Judicial Review of Statutes

135. Chief Justice Presides over Impeachment trials

136. Executive Checks on the Judiciary

137. Appointment of Judges

138. Power to issue pardons, reprieves and amnesties

139. Judicial Checks on the Executive

140. Judicial Review of Executive Actions

141. Chief Justice Presides over Impeachment trials

142. Problem: Are the powers too separated?

143. While there is a tremendous advantage in ensuring that the three powers of government do not fall into the hands of one person or institution, separated powers can lead to gridlock and inaction.

144. The framers of the constitution still wanted a government that worked.

145. Do political parties solve the problems associated with the checks and balances?

146. Proponents of political parties argue that parties are essential in overcoming the gridlock that would paralyze government if the institutions always worked against each other.

147. Parties, by running candidates for office committed to a set of policies, or at least a shared idea of governance, a party can potentially control the branches and successfully implement an agenda.

148. Again, this is only likely to happen if one party can win a series of elections. Alternate victories are likely to lead to one party cancelling out what the other does.

149. Proponents of parties argue that the ability of one party to offer an agenda and implement it allows the electorate the ability to make a rational, meaningful choice in an election.

150. Parties, they argue, are therefore essential to the development of democracy.

151. They allow voters to make a clear choice between distinct alternatives. We will look at this more closely later.

152. The End