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 FamilyAristocracy – 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 CONSTITUTIONARTICLE 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 PeopleSenate – Selection by State

LegislaturesPresident – Electoral CollegeFederal 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 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 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 termSenate – 6 year overlapping terms

President – 4 year termsFederal 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 termSenate – 4 year overlapping terms

Governor – 4 year termCourts – 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.