|(Iran Nuclear Sites)|
26 February, 2009
17 February, 2009
Main Thesis: In these editorials James Madison addresses the issue of separation of powers proposed in the newly proposed constitution. In Federalist No. 47 he discusses the need for the branches of government to be "separate and distinct". The Argument was the only way to prevent tyranny (Defined in quote below) the powers of government must be in separate hands. While in Federalist No. 48 the argument is over the manner in which the branches are "separate and distinct" while still retaining "constitutional control over the others". The point that Madison was arguing was that it is possible to prevent tyranny without having complete separation between the branches and in fact some control over the other branches is necessary to prevent tyranny. Madison's of these ideas on the separation of powers are derived from Montesquieu.
In Federalist No. 47 Madison looks at the state's constitutions and he finds that not one has any branches of government completely separate from each other.
Federalist No. 48 Madison looks at situations which had already arisen in the states where the legislative body had overstepped their delegated tasks and was not put into check by the other branches. These were in Pennsylvania and Virginia.
System of Checks and Balances
|-House & Senate Accountable to each other|
-Bill has to go through both House and Senate
-Neither may adjourn for more than 3 days without the others consent
-State of Union address
-Selects the President if no Majority of electoral votes
-Approve Ambassadors, Treaties, Cabinet positions
-Approves appointed Judges
|-Senate confirms Judges|
-Alter size of Supreme Court
-Initiate Constitutional amendments
-Sets jurisdiction of courts
-Can setup the inferior courts
-VP is President of Senate
-Commander and Chief
-Can call an Emergency session of Congress
- Can force adjournment when Congress cannot agree
|-Vice President and Cabinet can declare President unfit to discharge the duties of his office||-Appoints judges|
|-Judicial Review||-Judicial Review,|
-Chief Justice sits as President of Senate during impeachment
|-No self Checks||Judicial|
"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 legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."
"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarchic senate should enact tyrannical laws to execute them in a tyrannical manner."
16 February, 2009
Democratic Principles & Federalism
- How can Liberties be threatened?
- From Within- danger from Faction
- What is a faction?
"By a Faction, I understand a number of citizens, wither amounting to a majority or minority of the whole, who are united and actuated by some common impulse of a passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Federalist # 10
- From Without- Danger from oppressive government
- What are the solutions to these dangers to liberty?
- Solution to faction- An extended republic
Federalist 9-10, 51
- Solution to oppressive government- Slice and dice governmental power
Separation of powers and Federalism
Federalist 47-51, 39
- Federalist 9
- Important Aspects of the paper:
The history of past republics has not been good
A solution to the violence and insurrection must be found
Fortunately, there have been improvements to the science of Government
Among them is the enlargement of the orbit
- List of Improvements
"The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior, the representation of the people in the legislative by deputies of their own election" Federalist # 9
- Federalist 10
- Important Aspects of the paper:
- The proposed government had the tendency to break and control the violence of faction
- The definition of faction is offered
- Faction seems inevitable and cannot be totally eliminated
- The most common source of Faction- conflict between the haves and have-nots
- The extended republic is the key
"Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction." Federalist #10
"Complaints are everywhere heard from out most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments; are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." Federalist #10
"There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. " Federalist #10
- What does Federalist #10 propose as a solution to control for the effects of faction?
- A: the solution is to be found not in a pure democracy, but a representative republic
- Democracies have to be small, but representative republics offer two advantages
- Extended (Large) republics offer two advantages:
- Better pool of potential candidates
- A greater Varity of interests
"Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such it to discover their own strength, and to act in unison with each other." Federalist #10
- Better Representatives?
- In a larger territory only men of attractive merit and established character will rise to top and be elected
- The deliberations of these enlightened statesmen will be better than if the people had deliberated themselves
- More on this when we talk about Congress
- Greater variety of interests?
- The more people you have within a sphere, the greater variety of interests.
- The greater variety of interests makes it less likely that a majority will form around anything other than the public good (i.e. a conclusion that is in line with the common good or at least not harmful to the minority)
- Federalist 47
- Important aspects of the paper:
- Does the proposed Constitution violates proper separation of powers?
- How does Publius define tyranny?
- “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.”
- Does proper separation entail a complete separation of powers between the different branches?
- Did the British Government or State governments demonstrate complete separation?
- Federalist 48
- Important aspects of this paper:
- Ironically, a proper separation actually entails some kind of connection or blending between the branches
- Yet, what kind of of blending of powers would be too much as to be an "overruling influence" and how do you prevent this?
- Will mere words on paper prevent this?
- What did the Critical Period tell us about the legislative vortex?
- Federalist 49 & 50
- Important aspects of these papers:
- Will the external control of appealing to the people (vial mini-constitutional conventions) be the best way of preventing undue encroachments?
- Federalist 51
- Important Aspects of the paper:
- Seeks to demonstrate that only a properly-structured government possessing the requisite Internal Controls can provide for a proper separation of powers
- Each branch must have the means and motive to protect its respective powers
- What does this say about human nature?
- Does the legislative branch present a special concern for us regarding separation of powers?
- Here Publius reiterates may of the same points he made in Federalist 10
- The protection of civil rights will be gained in the same manner in which religious rights are protected- By multiplying the interests (sects )
- Design a system of government that will police itself against encroachment on powers
09 February, 2009
Critical Period, Constitutional Convention, and Ratification Debate
Critical Period: 1783-1787 (Under Articles of Confederation)
Constitutional Convention Period: Summer of 1787
Ratification Period: 1787- 1789
Look at the events of the critical period
Examine the major arguments made by the opponents of the Constitution: the Anti-Federalist
Look at Federalist 23 and 25
- Governmental Power
- Individual Liberty and Security
What is the common assumption about how to balance these two things?
Under Articles of Confederation:
- Very weak Governmental Power "The United States in Congress Assembled"
- Almost all power resided in the State power
- A strong Government can be used as an oppressive instrument
What were the "Founders" most concerned about?
Founders: People who founded the country (1776)
What were the "Framers" most concerned about?
Framers: People who framed the constitution (1787)
Balance of Power: Between Governmental power and Peoples liberties
Power to the State or Nation
Individual liberty can be threatened from 2 sources:
- From Fellow citizens (dangers from within)
- This is the danger of "majority fraction"
- Federalist 10 & 51
- Anti-Federalist: Centinel # I
- From the Government (dangers from without)
- This is the danger of an oppressive government
- Federalist 47-51
- Anti-Federalist: John DeWitt # III
What did the Founders learn during the Revolutionary War?
Answer: they learned that times of crisis change the situation quite a bit
- Times of crisis call for (1) an increase in governmental energy, and (2) an increased need for citizens to submit to that authority
What happened after the Revolution?
Answer: A general collapse in governmental energy or vigor
The Newburgh Conspiracy
The Articles of Confederation
Under the Articles of Confederation
The General problem of the Critical Period under the articles of Confederation was broadly a lack of government strength ("Lack of coercive power"), but more specifically it was a lack of NAIONAL governmental strength (Pg 16 of Thach)
- Most all power was at the state level
Lack of National Government
- The non-payment of the national debt
- A general commercial depression
- A rising discontent of the lower socio-economic classes
How does a strong central government help to solve each of these problems?
- A strong central government would have the power to levy taxes to fund a Federal treasury in order to pay back the debt, it would also be able to manage the national economy
Shays Rebellion (1786- 1787)
- An uprising of small farmers (think, lower, socio-economic class)
- Farmers were suffering under the impact of their debts
- Thousands took up arms to keep from being thrown in debtors prisons
Henry Ox said the national government was powerless to stop it
- Shays rebellion shoed that History was repeating itself!
- In popular forms of government, then tendency is for people to join together with like-minded others toward getting what they want
Violent: Shay's Rebellion
Non-Violent: Majority Factions
Anti-Federalists and Federalists
Who were the Anti-Federalists and what was their concern?
- Many simply see the Anti-Federalist as a group of people in opposition to the proposed Constitution
- While true, it is also key to see that the Anti-Federalist were actually for something as well
General Characteristics of Anti-Federalist thought
- Anti-Feds were for conserving the status quo- no wholesome changes to Articles of Confederation
- Anti-Feds were for a union, but a very different kind of union that the one proposed under the Constitution
- Anti-Feds were for the bulk of governments power to reside with "small republics" (think States)
Anti-Federalist were Conservatives
- Anti-Federalists knew that the AOC was lacking, but believed that it only needed to be tweaked or adjusted in a minor way
- Anti-Federalists saw themselves as the true conservators of "federalism" which they thought was a confederal
Which is the best system?
- Confederal- A system where the parts are united into a whole, but the bulk of power resides with the parts (compact of states theory)
- Federal- union represents a mix of power between parts and whole (Federalist 39)
- National- a union which results in a power residing at the whole (thus eliminating the parts)
What bothered the Anti-Federalists about the Constitution?
- The consolidating aspect of the Constitution shifting the bulk of power to the new central government
- Seen as a threat to State sovereignty
- The power possessed by this new central government
- Would lead to despotism
Why was this perceived consolidation so bad?
A: Because they thought that this consolidation of power at the national level would effectively eliminate the state power (Federalist 39)
Why was it so important for the Anti-Federalists that the States maintain political supremacy?
A: Because they thought that there was an essential connection between (1) state, power and (2)individual liberty
What characteristic did the States have that made this possible?
A: They were small. This is why Anti-Federalists are called "small republic" people
- Anti-Federalists believed that a small republic (again, think primacy of the States) was necessary to promote free societies
Perceived Benefits of a small republic
- Voluntary attachment of the people to the government and its laws
- Effective representation
- Formation of virtuous citizens
Large republics work better
- They do a better job of protecting people's liberties
- Better representation will be gained in larger republics
(Federalist 9 & 10)
What about the fact that this new central government would be so powerful?
Anti-Federalists looked at this new government as a monster Leading to despotism
- Supremacy Clause of Article IV
- Necessary and Proper Clause of Article I
- Article II in general
- We've already seen where weak government led us..
- Means/Ends argument justifying greater governmental power (Federalist 23 & 25)
An energetic government raises three questions:
- What objects are to be provided for by a federal government?
- What quantity of power is necessary to achieve these ends?
- To whom will that power be entrusted?
- This starts in Federalist 52
Anti-Federalists lost because they had weaker arguments
But it was not a total loss because they got the Bill of Rights
Anti-Federalists thought endured beyond 1789 in two lingering issues
- Attachments to small republics (compact of states theory)
- Fear of royal prerogative (Article III)