Checks and Balances
The Federalist Papers
July 2019
M Bryan Kelly
The Constitution was not written in a vacuum. It was created with extensive knowledge of history and past governments. The authors were guided by the then concept of The Enlightenment[1]. They looked to the French Judge and philosopher Montesquieu, generally credited with the idea of Separation of Powers.
Here is a Wikipedia article about him: https://en.wikipedia.org/wiki/Montesquieu
When the Constitution was presented for ratification in 1787, it was not what we might call a done deal. Some objected vociferously. Beginning in October 1787 The Federalist Papers were written to explain its merits and encourage the citizens to ratify it. The known authors are Alexander Hamilton, James Madison, and John Jay. They collectively wrote using the pseudonym Publius[2]. Madison is recognized as the author of the Constitution so his role in the Federalist Papers impart standing to write about the intent. Madison was the fourth President. Hamilton was a delegate to the convention, had been a senior aide to General Washington, and is recognized as one of the founders. John Jay played a role in the ratification of the Constitution, was the first Chief Justice of the Supreme Court, and was elected Governor of New York. The Federalist Papers were written after Constitution and prior to its ratification. They are considered primary documents. Here is one site that contains each with an introduction to the set.
http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/index.php
Side Note on Writing Style
The web sites I found are formatted such that one might think that space without writing was enormously expensive. The paragraphs can be huge and sentences seem to go on forever. A quick search found this site:
https://www.timrosenblatt.com/blog/tag/federalist-papers/ where I quote this paragraph:
There are 6190 sentences in the text. Of those, 2528 are less than or equal to 140 characters in length (but larger than 15). There are 3662 sentences greater than 140 characters in length. 59% of the sentences wouldn’t fit in a single tweet.
That site claims to have found the longest sentence. I copied it into my editor and it told me there are 199 words and 19 commas,…, in one sentence. As Charlie Brown might say: Good Grief!
The point is, this makes for some difficult reading. If you endeavor to read these documents, you are suggested to download each one and break it up into paragraphs, and maybe break some sentences into two or more. I suggest that you do some internet searches for phrases such as:
federalist 47 review comments opinion
Considering how few people actually discuss these papers, it is amazing the amount of information you can find from people who have deeply considered and have written about them.
As I noted in a blog on the 4th of July, one of the more patriotic activities you can engage in is:
Read the Constitution, please do this.
And to that I now add:
Read The Federalist Papers, please.
The latter is rather more difficult, but will result in much more insight than you might expect. The Federalist is too much consider at a sitting. Start with the index page provided above and pick and choose. Do these things and you will move into the elite 10% or maybe 5% of the nation with regard to knowledge of how the country was intended to run and to continue to run over the centuries.
(Ok, I made up that 10% or 5%, but I think it is a valid estimate.)
The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
Publius makes the case for separation of powers and that the Constitution accomplishes this goal.
Quote from the second sentence
… the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct.
A bit further down is the admonition:
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.
The importance of separation of power is powerfully stated. But this and the constitution are quiet on what to do upon encroachment and crossing of boundaries. To be fair, that would be too much for the Constitution.
Here is a link to one analysis of 47:
https://www.gradesaver.com/the-federalist-papers/study-guide/summary-essay-47
The paper is here: http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-48.php
The analysis is here: https://www.gradesaver.com/the-federalist-papers/study-guide/summary-essay-48
The paper begins with these sentences:
IT WAS shown in the last paper that the political apothegm [a concise saying or maxim; an aphorism] there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that 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 my words: The three branches must have influence upon each other. Exactly what and how that influence is manifested is not stated.
The second sentence down:
It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.
That one is self-evident, significant, and bears remembrance.
A bit further Publius cautions:
… by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
This is a warning declaring that the Legislative is subject to the same attempts of tyranny as the Executive.
Nor is this all: as the legislative department alone has access to the pockets of the people,….
We are reminded that the Legislature has complete power of the purse.
The following are two sentences found together, are related but need separate consideration.
It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.
My experience shows that the use of double negatives creates uncertainties. The significance of the word nicety may have drifted over the years and is certainly subject to interpretation. The meaning I extract from the first the sentence is:
The full effects of a particular measure are not certain and any measure may extend beyond the legislative sphere.
Regarding the second: My opinion is that the authors of the Constitution were not able to foresee, and should not be expected to have seen, the size of the nation and its population, the complexity of society today, and consequently the size of the government today.
And now with the consideration of my readings so far into the Constitution and these Federalist papers, I infer that the authors expected a much smaller Executive than that which we now have. The meaning of that is that with its increased size and authority, the Executive is subject to the tyrannical tendencies that will accompany any large and powerful bureaucracy. This worry about any one branch of government corralling too much power and authority is a prevalent theme in the Federalist papers and should be weigh heavily in our minds, specifically because of the unforeseen enlargement of the Executive. Please keep this thought in mind as we review more of The Federalist.
In particular, the authors could not have foreseen the power wielded by the single individual they referred to as the President of the U.S. States. With this in mind, a tentative conclusion is that they would have endorsed stronger controls over the Presidency.
In consideration of the purposes of the three branches of government, I further presume that the Legislative should have that additional control over the Executive.
The paper concludes with:
The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
In my words, there are two conclusions. There must be some dynamism in the government. Each branch is limited, but absolute binding to the specific words will lead to problems. Second, the conclusion strongly warns again of too much power in too few hands. This is a theme through the Federalist Papers.
Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-49.php
This paper argues against the concept that two of the three branches of government should be authorized to call a constitutional convention. The order of this paper is in the group I loosely categorize as those about checks and balances, but is mostly not applicable to this topic.
One of the last few sentences of worthy of note here:
We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights.
Once again Publius expresses concern that one of the several departments [branches] may attempt to extend beyond the authority that was and is stated and limited in the constitution.
Periodical Appeals to the People Considered
http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-50.php
This paper argues against the concept of the providing for periodic examinations, and presumably correct action, of the government by the people. It is not applicable to this topic.
The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-51.php
Publius opens the paper with a question and answer:
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? 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.
The core is expressed in the last phrase. Each of the three branches is to play a role in ensuring that the other two do not gather and abuse too much authority and power.
Publius recognizes:
…, it is evident that each department should have a will of its own.
Paper 51 recognizes some of the tendencies of man and consequently the difficulties in establishing a fair, good, and honest government:
But 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 provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. 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 few additional key sentences:
In republican government, the legislative authority necessarily predominates.
And
As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
In my words: The legislature is divided into two houses, the Senate and House. This was purposeful and the need explicitly stated. Second, and again, I feel an obligation to repeat that the founders could not have foreseen our country now and the power and authority wielded by the Executive branch. If Executive needed fortification then, that is no longer the case. Some things stay the same, such as the known tendency of men and bureaucracies to accumulate and abuse power. Some things change in completely unexpected manners, such as this entire world.
The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.
Again and again the warnings of oppression are delivered.
This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.
And more warnings of the oppression of the majority.
The extent and significance of Federalist 51 is of such significance that I need to limit the quotations for fear of just including the entire paper. The reader is strongly encouraged to find and read not only 51, but all the papers referenced in this essay.
[1] The Enlightenment is a deeply interesting topic. I have wound up there a few times in my reading and writing. The time frame is from the 1600s through the 1700s. The Constitution was strongly influenced by it. It can be said to be the beginning of the Epoch of reason. The discovery and diffusion of knowledge among the people. But even back then, the Conservatives of the day objected and resisted The Enlightenment. They did not want people thinking for themselves and making up their own mind as to how things should be. And the Conservative continue to do today. (That is another article.) Please read about The Enlightenment. Here is a Wiki article for an easy start. https://en.wikipedia.org/wiki/Age_of_Enlightenment
[2] The reference is to Publius Valerius Publicola, a Roman patriot, general, and statesman who lived in the sixth century B.C.E. and who, according to Plutarch’s Lives, saved the early Roman republic several times from tyranny and military subjugation. https://meynercenter.lafayette.edu/publius-journal/