“Federalist 47, 48, 51”
James Madison
“How Not to Read the Constitution”
Lawrence Tribe & Michael Dorf
Definitions:
 Federalist
 Supporters of ratification of the
Constitution whose position promoted a
stronger central government.
Anti-federalist
 Opponents of ratification of the
Constitution and of a strong central
government.
Federalist Papers
 A collection of 85 articles written by Hamilton,
Jay, and Madison under the name of “Publius”
– to defend the Constitution in detail.
Lecture:
 Madison & the framers believed:
 “statesmen should govern”
 “strong national government was essential for
the preservation of the national interest”
 “the Enlightenment and it’s faith in reason,
progress, and the ability of men to govern in a
deliberate and selfless way”
 Mechanism:
 Separation of powers
 Checks and balances
 Goal = “advancement of the national interest”
(Lecture Summaries 12)
Madisonian Model & 18th Century
Model of Government
 “One in the same”
 balanced government
 “to prevent selfish political interests from
ruling including the selfish majority will”
 “to assure deliberative government that
defines and carries out the national
interest”
(Lecture Summaries 13)
No. 47 – Main Argument
 “The separation of powers protects liberty”
 Criticism and Madison’s Response:
 Critics alleged “that the new document does not
adhere to the adhere to the above maxim”
(motto)
 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
(The Setting of… 5)
No. 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.”
(The Setting of… 6)
No. 51
 Main argument:
 “Ambition must be made to counteract
ambition”
 Madison’s reasoning:
 Each branch
 Own will
 Independent (as possible)
 Ability to resist encroachment from another
branch
 Ex: Legislature – divided into two houses
Executive – veto over legislation
(The Setting of… 6)
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 selfrestraint in cases involving political questions”
(Lecture Summaries 13)
“How Not to Read the Constitution”
 Main Argument:
 Interpreting the Constitution “looking beyond the specific views of the
Framers”
 Reasoning:
 Framework – “balancing liberty against
power”
 Adapting from generation to generation –
“difficult and complex”
 Judges should not impose personal viewpoints
(The Setting of… 7)
Questions:
1. What was the main purpose,
according to James Madison, for
Federalist 47?
 To examine the actual structure of the
government and the division of power
between the branches of 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.
Explain the following statement in by Madison: “…unless these
departments be so far connected and blended, as to give to each a
constitutional control over the others, the degree of separation
which the maxim requires, as essential to a free government, can
never in practice be duly maintained.”
 In order for a free government to
function properly it is critical that
there be checks and balances of
power between and among the
branches.
 Discuss: “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.”
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.
 What is Tribe and Dorf trying to imply regarding
the Constitution?
 Constitution – “balancing liberty against power” (Woll 47)
 Framework, not blueprint (Woll 47)
 How to read the Constitution:
 “find principles of interpretation that can anchor the
Constitution” (Woll 49)
 Problem:
 Too much room for imagination. (Woll 49)
 Judges imposing their own viewpoints
Works Cited
Woll, Peter. American Government Reading and Cases. 16th
Ed. Pearson/Longman. New York. 2006.
Woll, Peter. Lecture Summaries. Brandeis University. 10 Aug
2005. http://people.brandeis.edu/~woll/wollwebsites.html
Woll, Peter. The Setting of the American System. Brandeis
University. 9 Sept 2005
http://people.brandeis.edu/~woll/pol14bAdobe.html