Federalist papers #46 and #51

PSCI 110 – Summary Paper #2

Glenn Booker  10/9/2012

Federalist Paper #51 (Hamilton, A., Madison, J., & Jay, J.  (1961) The Federalist Papers.  New York; Signet Classics.) was written by James Madison to discuss checks and balances needed in the new Constitution.  He recognizes that external provisions to partition power among the departments of government are inadequate, so internal structure must be contrived to keep each other in place.  To preserve liberty, it is essential to separate powers of government, and ensure that each department has as little influence over the appointment of people in the other departments.  Ideally the executive, legislative, and judiciary departments should be chosen by the people with no cross communication with one another.  To be practical, however, a different approach is recommended.  The judiciary needs special qualifications and is permanent, so selection by the people seems unwise.

Clear separation of the powers of each department is needed, and is implemented by addressing constitutional and personal motives.  Madison wisely recognizes the power appeal of government, and uses it to achieve balance.  “Ambition must be made to counteract ambition.” (page 319)  Government magnifies human nature.  If, as St Augustine said, everyone were angels, Madison agrees that government would not be needed.  That not being the case, internal and external controls are needed so that the administered are controlled as well as the men under them.

A key goal of government is to divide power to check on each other, so that personal interests keeps guard over the public interests.  However in a republican government, the legislative branch has excess power, which is why it is divided into two branches to weaken it.  Having different means of selection and ways of doing business also helps keep the legislative branches under control.  Making the executive branch stronger might also be needed.  While the executive branch could have veto power over the legislative branch (absolute negative), that power could be abused, hinting at the ability of Congress to override a Presidential veto.

These guidelines for checks and balances also apply to the States.

America is a compound republic, since people are subjects of not only the country but also their State.  As a result,  the State and Federal governments control each other, providing another layer of checks and balances.

In a republic it is also important to guard against one part of society oppressing another part.  The rights of the majority can ignore the rights of a minority.  To protect from this happening, the will of the community (i.e. society as a whole) can prevent this oppression; this approach can work weakly in hereditary or self-appointed governments.  Second, the people could belong to so many groups that any one can’t be strong enough to oppress the others; this is used in the United States.  The effectiveness of the latter approach depends on the number of groups (“interests and sects”, page 321), and how many people are in each unit of government.

Justice is the goal of government and of civilized society.  Anarchy results when the weak are not protected from the strong; but even then the strong will want a government to protect their interests.  Given the diversity of the United States, a coalition of the majority of society will usually be based on justice and the common good.  Usually.

Federalist Paper number 46, also by James Madison, compares the power of the state and federal governments.  The state and federal governments are designed to have different powers and purposes, so they aren’t rivals.  The authority for both governments lies with the people, not whether the state and federal government fight over their jurisdictions.  Madison expects that people will have more loyalty to their State than to the federal government, and therefore more people will be drawn to State government.  Most people also know their personal and local affairs better than national ones, so that will also tend to push them to state or local government.

During the Revolution and shortly after, this loyalty to local and state affairs was clearly seen, in part because the federal government was so weak.  Attempts to strengthen the federal government were met with opposition.  People will continue to support state government more fully, since it is administered better than federal.

The rest of the paper discusses how state and federal governments resist each other’s laws.

Federal government is more dependent on state than vice versa, because of the aforementioned fondness for state matters and issues over national ones.  Politicians need to meet the needs of their State before they can expect public support for national issues.  Similarly, federal politicians tend to focus too much on local matters.  This pattern is the same seen at the State level, compared to cities and counties within it.  Federal politicians are supposed to be “impartial guardians of a common interest” (page 293), but instead just look out for the needs of their States.  Based on this, the new Constitution will avoid messing with States’ rights and governments, or no one will support it.

If the federal government tries to extend its power, the states can suppress it, and will unify to act against a threat to only one of their number.  But if a state does something overly offensive, federal intervention would only make them mad, AND not be effective unless very unpleasant means were used (war?).  It’s possible that the federal government would build an army for “projects of ambition”  (page 295) against the state governments, but Madison believes this is terribly unlikely because the people and the states would not support it and could repel it.   Interestingly, he claims the largest possible army for a nation is 1% of its population, or 4% of those able to carry arms.  At the time of this writing, that would give a federal army of no more than 30,000, against state forces of nearly half a million.  The presence of a heavily armed populous, combined with favored local governments, forms a strong barrier to federal military intervention.  European kingdoms make armies as strong as their economy can bear, and don’t trust people with arms, yet if their people and local governments united against them, then “the throne of every tyranny in Europe would be speedily overturned.” (page 296)

In summary of this paper, a federal government  that is dependent upon its people will be kept in check by those same people.  A federal government that is not dependent will be overthrown by the States.  The powers given to the federal government are as weak as possible compared to state powers, but still needed to form a Union.  As a result, States have nothing to fear from this new Constitution.

Summary

Federalist papers #51 and #46 outline the key basis for checks and balances in the proposed Constitution.  Number 51 recognizes that people crave power, so the internal structure of federal government is divided to keep each department under mutual control.  The departments (executive, legislative, and judiciary) are selected and managed separately to avoid cross communication as much as practical.  The legislative department is inherently more powerful in a republic, so it is further divided into two houses to weaken it.  The judiciary department requires special skills and is a permanent job, so it is treated quite differently from the other departments.  The executive branch is fairly weak, so veto power gives it more power, but legislative veto override keeps it from going overboard.  The rights of the minority are protected by having a diverse range of groups in the country, so the majority will usually be just and good.

The state government also provides substantial checks on federal power, as expanded upon in paper #46.  The state government has massively more public support and interest than the federal government, so the latter is weak and unable to oppress the states.  The bad side effect is that the federal politicians will tend to favor local and state issues to the exclusion of the best interests of the nation.  The result is that state rights are very strong, and the federal government has limited resources to pressure rogue state actions.  Military action against states is very unlikely, since the people love their state far more than their country, and local militias are far larger than the federal army.  Local governments could even overthrow European kingdoms if they united to do so.  The clear message is that states will have substantial power under the new Constitution, so they should ratify it and not fear the new federal government.

An aside:  I’ve lived at least a few months in nine states, so I’m really confused by the extent of state power and autonomy.  Perhaps if I and generations of my family only lived in one state, then the latter obsession might make more sense.

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