Primary Sources: Federalist 51, 70, 78
How does the Constitution set up a system of government that shares power among the branches?
Federalist #51, February 8, 1788
- I can explain why James Madison believed that the Constitution set up a limited government that shared power among its branches.
- I can develop an argument using evidence from primary sources.
Building Context: While the Constitution was signed in September 1787, it would need to be ratified by conventions of nine of the 13 states. Alexander Hamilton, James Madison, and John Jay wrote and published The Federalist Papers in New York newspapers. New York was a state whose ratification of the Constitution was critical due to its size and location. In Federalist #51, James Madison outlined how the Constitution would effectively divide power in the new republic. He also continues to develop the argument he made in Federalist #10 about a large republic negating the danger of factions.
For additional background information on Federalist #51, watch the following Primary Source Essential Video: https://billofrightsinstitute.org/videos/federalist-51-primary-source-essentials
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In order to lay a due foundation for that separate and distinct exercise of the different powers of government…it is evident that each department should have a will of its own… | ||
…members of each department should be as little dependent as possible on those of the others…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… | encroachments: intrusion | |
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… | ||
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. 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. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure… | allotted: divided | |
[Under the Constitution] the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority… | ||
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger… | civil society: community groups and associations not associated with government
faction: people formally connected by a shared interest anarchy: chaos or lawlessness |
Comprehension and Analysis Questions
- What does Madison believe will be the best way to prevent power in the government from consolidating or becoming more powerful?
- Refer to the Separation of Powers Infographic. List two examples of checks and balances in the Constitution that are intended to prevent a consolidation of power.
- How does Madison think the new form of a compound government outlined in the Constitution will help secure the rights of citizens? How will having a large republic help secure the rights of citizens?
- Madison wrote, “Justice is the end of government.” Explain why preventing a majority faction from exercising tyranny over a minority helps ensure that justice will be better carried out in a society.
- Summarize the main idea of this document in one sentence.
Federalist #70, March 15, 1788
- I can explain why Alexander Hamilton believed that a strong executive was necessary in the federal government.
- I can develop an argument using evidence from primary sources.
Federalist #70, March 15, 1788
Building Context:
Because of the experience of tyranny under the British monarch, the American revolutionaries feared strong executives in the states or at the national level during the 1770s and 1780s. The Articles of Confederation lacked an independent national executive. Because of this, the national government could not respond to crises such as Shays’s Rebellion, compel the states to follow the Paris Peace Treaty of 1783, or generally enforce congressional laws over such things as taxation. The Constitution created a single executive with broad powers. Anti-Federalists argued that the stronger executive would become tyrannical and corrupt, and therefore, endanger liberty. In Federalist #70, Alexander Hamilton defends the strong executive in the Constitution. Hamilton argued that a single executive would be more effective than a plural executive in enforcing the law and protecting liberty.
For more background information on Federalist #70, watch the following Primary Source Essentials video: https://billofrightsinstitute.org/videos/federalist-70-primary-source-essentials
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THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government…Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy… …A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. |
enterprises: attempts at attack
faction: people formally connected by a shared interest
anarchy: chaos or lawlessness
feeble: weak |
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… attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. |
magistracy: office or person who administers the law |
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But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds — to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. |
pernicious: harmful |
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Comprehension and Analysis Questions
- What are the benefits of a strong, energetic executive according to Hamilton? Do you agree or disagree?
- Why does Hamilton argue that an energetic executive protects liberty more than a weak one?
- What are the dangers of an executive made up of two or more people?
- How might an Anti-Federalist like Brutus respond to Hamilton’s argument for a strong executive?
Federalist #78, May 28, 1788
- I can explain why Alexander Hamilton believed that an independent judiciary was important in the new government.
- I can explain the power of “judicial review.” I can develop an argument using evidence from primary sources.
Federalist #78, May 28, 1788
Building Context: The Articles of Confederation lacked an independent national judiciary. In Federalist #78, Alexander Hamilton argues for the complete independence of the courts and the importance of judicial review. He explained that the judiciary would be the weakest of the three branches of government because it did not have power to enforce its will like the president or the power to make laws or spend money like the Congress. Instead, the judiciary had the force of its judgments in cases brought before it.
For more background information on Federalist #78, watch the following Primary Source Essentials video: PSE: https://billofrightsinstitute.org/videos/federalist-78-primary-source-essentials
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WE PROCEED now to an examination of the judiciary department of the proposed government. …Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary , from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
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efficacy: effectiveness |
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The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two…the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former… |
province: responsibility ascertain: figure out |
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If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. |
bulwarks: defenses tenure: time in office arduous: difficult |
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That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. |
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Comprehension and Analysis Questions
- What role does the Court play in interpreting the laws made by Congress?
- How does Hamilton explain the power of judicial review?
- Why does Hamiton argue that judges must be appointed for life?
- Why does Hamilton argue that the judiciary is the “least dangerous” branch of government? Do you agree with Hamilton’s argument?
- How does the judiciary reinforce the constitutional principles of checks and balances and limited government?