GOVT 2301
Federalist #51 and the
Separation of Powers
Last week we looked at republicanism,
the first of several principles
embedded in the U.S. Constitution.
As we know, republicanism is the fancy
name for representative democracy,
and that the principle is meant to
ensure the stability of the governing
system despite its basis on the people.
In this set of slides we look at a
second principle within the
Constitution, the separated
powers.
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.
We will also look at the checks and
balances, which is the method
maintains the separated powers.
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.
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.”
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.
For past blog posts on these
subjects, click on the following:
Separated Powers.
Checks and Balances.
Appointments.
Federalist 51.
A little history (a reminder)
might help remind us about the
importance of balanced
governments.
This section is about the need for balanced
governments
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.
Balanced governments existed in
ancient Rome as well as Britain.
The links take you to the
constitutions of each government.
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 Caeser.
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.
Monarchy – The Royal Family
Aristocracy – The House of Lords
Commoners – The House of
Commons
Enter the Enlightenment
Baron De Montesquieu was a
proponent of a governing system
separated according to the
functions of government.
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)
The following quote is from 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.
As a result: 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.
The Trick:
How do you do this?
How are powers separated and
how are they kept separate?
That is the subject of Federalist
#51, written again by James
Madison. This subject is also
discussed in Federalist Papers 47 –
50.
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.
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.
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.
Each article begins with a vesting
clause which states that each
power is “vested” in a distinct
institution.
What 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.”
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.
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.
The Legislature
Article One of the U.S. Constitution
Article Three of the Texas Constitution
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.”
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
The Executive
Article Two of the U.S. Constitution
Article Four of the Texas Constitution
Section 1.
“The executive Power shall be
vested in a President of the United
States of America.”
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.
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?
The Judiciary
Article Three of the U.S. Constitution
Article Five of the Texas Constitution
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.”
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
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.
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.
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?
Do we have a system of rigidly
separated powers, or a system
containing separate institutions
sharing powers?
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.
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.
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.
That’s what Madison is trying to
argue in Federalist 51.
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.”
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.”
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.
House – Election by the People
Senate – Selection by State
Legislatures
President – Electoral College
Federal Courts – Presidential
Appointment followed by
Senatorial Confirmation.
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.
Tyranny occurs when on controls
the others; when they are no
longer independent.
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.
“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.”
By the way, this was the type of
reasoning that upset the AntiFederalists 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 as we know.
Also note: The 17th 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.
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.
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.
That’s the positive spin. The
negative spin is that it allowed the
majority to continue tyrannizing
the minority.
In addition to the different means
for getting elected, each institution
also has different terms of office.
This strengthens the separation.
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.
Notice that the judiciary has
lifetime tenure. This is to ensure
that the judges will not be
controlled by the executive branch.
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.
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.
This enhances independence.
If properly designed, the result will
be four institutions that can act
independently.
The purpose is to ensure that
drastic shifts in public opinion will
not lead to drastic changes in
public policy.
But steady changes in one
direction election after election
can have an impact on public
policy. Attitudes about race and
gender are good examples.
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.
House – 2 year term
Senate – 4 year overlapping terms
Governor – 4 year term
Courts – 6 year term
A third factor establishing the
independence of each institution is
that neither has full control over
the salaries of the other two.
“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.”
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.
“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?”
How do we keep them separated?
“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.”
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.
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.
The better option was to solve this
problem internally.
“. . . 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 interest of the man must be
connected with the constitutional
rights of the place.”
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.
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?
“Ambition must be made to
counteract ambition.”
He is taking – as in Federalist #10 –
a realistic look at human nature.
Leaders are by definition
ambitious.
“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.”
“A dependence on the people is,
no doubt, the primary control on
the government; but experience
has taught mankind the necessity
of auxiliary precautions.”
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.
The point is that many of the
powers that are written in the
Constitution are focused on
establishing and maintaining
balance.
A few examples to make the point:
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.
National Judges and Justices serve
during good behavior, which frees
them from control by the
executive.
The Legislature cannot increase or
decrease a president’s pay. They
cannot use pay as a toll of bribery
or punishment.
Judges and Justices can have their
pay increased (they serve for life)
but it cannot be decreased.
Those who hold an office in one
institution cannot hold one in
another.
Altogether these design features
are meant to ensure that the three
institutions are autonomous.
The Anti-Federalists did not believe
that these limits would be
sufficient to check national powers.
Anti – Federalist #51
Do Checks and Balances Really
Secure the Rights of the People?
Let’s turn to an overview of the
checks and balances on the
national level.
A list from wikipedia.
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.
Legislative Checks on the Executive
Impeachment (House)
Trial of Impeachment (Senate)
Over-Riding Vetoes
Tax Bills must begin in the House
Control over Appropriations
Approval of Treaties (Senate)
Approval of judicial and executive
appointees (Senate)
Oversight Authority
While not mentioned in the
Constitution, it has always been
understood that Congress can
investigate actions of the other
branches.
Also note that the House and
Senate can check each other
Executive Checks on the Legislature
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
Recess Appointments
The Veto
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.
Legislative Checks on the Judiciary
Designing the courts, which
includes creating inferior courts
and determining how many
justices serve on the Supreme
Court.
Determining the jurisdiction of
federal courts, what they can and
cannot rule on.
Approval of Federal Judges
Impeachment of Federal Judges
Rewriting statutory law to negate
Supreme Court decisions.
Initiation of Constitutional
Amendments to negate Supreme
Court decisions.
Judicial Checks on the Legislature
Judicial Review of Statutes
Chief Justice Presides over
Impeachment trials
Executive Checks on the Judiciary
Appointment of Judges
Power to issue pardons, reprieves
and amnesties
Judicial Checks on the Executive
Judicial Review of Executive
Actions
Chief Justice Presides over
Impeachment trials
Problem:
Are the powers too separated?
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.
The framers of the constitution still
wanted a government that worked.
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.
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.
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.
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.
Parties, they argue, are therefore
essential to the development of
democracy.
They allow voters to make a clear
choice between distinct
alternatives.
We will look at this more closely
later.