Analysis Culture

The Federalist — Proper Checks and Balances

This article is part of a series. You can find part 1 here.

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Our examination of a few influential essays from The Federalist, the series published by John Adams, Alexander Hamilton, and John Jay, continues with a look at No. 51. It is unknown which author penned this particular piece, likely either Adams or Hamilton. Printed February 8th, 1788 in the New York Packet, this paper is a natural follow-up to No. 10, as it continues Adams’ argument that the new federal government outlined in the Constitution has substantial and sufficient safeguards against tyranny. The Federalist No. 51 deals with the system of checks and balances between the three primary branches of government, specifically with checks on what was designed to be the strongest of the three — the legislature.

The author begins by stating that it must be internal checks, not external, that ensure each branch’s power does not become dominant. External checks, such as conventions and appeals to the people, are dealt with in Nos. 49 and 50, and found to be inadequate by The Federalist’s authors. It is argued that the government must be structured so “that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

The first internal mechanism of restraint that is discussed is the limited ability of any branch to affect the appointment of another. This is claimed to be necessary for the “separate and distinct exercise of the different powers of government”, which is needed for the preservation of liberty. Ideally, this would be through direct appointment by the people, through independent channels. Without delving too deep, the author claims that this method at least seems to be difficult and costly, and thus argues that there must be deviations from this pure method. The author mentions the judiciary in particular, due to the lifetime tenure of justices, and the “peculiar qualifications being essential in the members.”

The second internal check discussed is that each branch should not rely on the others for their salaries. Continuing the belief prevalent throughout The Federalist that the prime motivation for an individual or faction is economic, the author believes that “ambition must be made to counteract ambition.” By making each branch independent in its rewards, the branches are protected from encroachment by others via this most tempting channel. Special attention is paid again to the legislature — as the strongest branch, the author points out that the independence of the judiciary and executive would be only be nominal without this protection.

Before addressing the next check, the author takes a moment to reflect on the human nature that makes the second necessary. “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.” Belief that human nature is flawed, and that people act in their own interest with a variety of abilities has always been a core tenet of conservative thought., and one that has always been at the center of belief in a small government and anti-authoritarian leanings that defined much of American history. It is that nature that makes it necessary to first empower the government over the people, and then “oblige it to control itself.”

The author then discusses the checks and balances which should be familiar to most Americans. He begins with the legislature, which must be the strongest branch in a republican government. The division of the legislature into two houses, the House of Representatives and the Senate, serves to divide its power. By giving each house “different modes of election and different principles of action,” they are separated from one another as much as their commonalities allow. It is from this check that we have our bicameral legislature, and why, for example, all bills concerning appropriations originate in the House, and the Senate has oversight on presidential nominees.

While the strength of the legislature led the Federalists to insist upon its division, they believed that the executive was weak, and needed fortification. The author initially posits that an absolute negative, or final veto, over the legislature be granted. However, he continues, claiming that may not be safe or even sufficient. The author believes a weak executive may not exercise the veto with “requisite firmness,” while under a stronger executive the veto “might be perfidiously abused.” As a solution, the author proposes some sort of connection between the weaker legislative body, the Senate, and the executive branch, so that the Senate might support the constitutional rights of the latter. In all, history informs where this argument led, as America currently has an executive veto that can be overturned with a two-thirds vote in both Chambers of Congress.

Having thus outlined what he sees to be the proper structure of a government designed to control itself — and therefore the people’s liberty — the author makes a further argument for the proposed new American government’s unique federal structure. America is not a simple republic. It is a “compound republic,” comprised of state governments, that hold more power than the federal. In this system, state and federal governments check each other, and control themselves internally as outlined above. This adds double protection.

The author also mentions factions in No. 51. He makes a strong argument for the perils of allowing one faction to become a majority, and impose its will, against justice, liberty, and civil rights, over the minority. To read more about how the Federalists, namely James Madison, deal with this, you can refer to The Federalist No. 10. In short, the author concludes that the federal principles outlined here will lead to a large and diverse nation, which will in turn protect against majority factions and allow for self-governance.

So how relevant is No. 51? It cited in twenty-seven Supreme Court decisions, making it the fourth-most cited essay of The Federalist. The paper outlines much of the reasoning behind the checks and balances outlined in the Constitution, and is a fantastic source of information when arguing the intent of those articles.

Much has changed since this paper as written, and the federal government formed. It is inarguable that the executive branch is now the most powerful. The branch is now made up of the President, Vice President, Executive Office of the President, and fifteen Cabinet departments controlling nearly $1.1 trillion in discretionary spending. Beginning in the 1930s, with the New Deal then World War Two, executive power began expanding into the domestic economic arena and further into foreign policy. The National Security Act of 1947 created an expansive defense and intelligence wing under the executive branch, which, now in the 21st century, is capable of waging war in conflict zones with little to no Congressional oversight or approval.

Originally, the Senate was elected by state legislatures, upholding the argument laid out above that the two Chambers of Congress should have different duties and modes of election. This was the law of the land for 125 years, until April 8th, 1913 with the passage of the 17th Amendment. The amendment was designed to reduce gridlock and combat corruption – many Senate seats were given as patronage for support at the state level.

Lastly, turning to the judicial branch, it is arguable whether or not the current mode of selection is the one that does the best job selecting for justices with the specific necessary skills (a keen legal mind and a drive to rule in support of the Constitution and laws found to be constitutional) mentioned by the author. There can be no question that the process of appointment and confirmation has become ruthlessly political, regardless of one’s personal beliefs. As demonstrated by Supreme Court nominations over the past decades, while sound legal minds are certainly selected by the executive, to ensure confirmation, the justice’s rulings must also fall in line with the President’s politics. The question is, does the system and current political climate favor partisanship or jurisprudence?

Next in our series examining The Federalist we dive deeper into that final question and the judicial branch with two essays dealing with “activist judges” and judicial review — two of the top three most cited essays. Stay tuned!

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Mic-Mac
Member
Mic-Mac

Looking forward to part 3. Early American History is one of my favorite topics. I have gotten away from reading on topics that I enjoy and your series on The Federalist is helping me get back into the mode. I actually have too many books going right now. I have one “The Founding Fathers”. Thank you and keep up the great writing.

Susan B
Member

Thoroughly enjoying your series, Tyler. I read The Federalist so long ago and am enjoying this refresher course for me. They were the greatest of thinkers. They didn’t write with their feelings but rather thru their logic. Loved that they included this thinking into their cogitations: “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.” Seeing the sins, they prepared for them. Thanks for writing on these important essays.

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