Federalist 47 48 51 James Madison How Not

“Federalist 47, 48, 51” James Madison “How Not to Read the Constitution” Lawrence Tribe & Michael Dorf

Definitions: o Federalist n Supporters of ratification of the Constitution whose position promoted a stronger central government.

Anti-federalist o Opponents of ratification of the Constitution and of a strong central government.

Federalist Papers o A collection of 85 articles written by Hamilton, Jay, and Madison under the name of “Publius” – to defend the Constitution in detail.

Lecture: o Madison & the framers believed: n “statesmen should govern” n “strong national government was essential for the preservation of the national interest” n “the Enlightenment and it’s faith in reason, progress, and the ability of men to govern in a deliberate and selfless way” o Mechanism: n Separation of powers n Checks and balances n Goal = “advancement of the national interest” (Lecture Summaries 12)

Madisonian Model & 18 th Century Model of Government o “One in the same” n balanced government o “to prevent selfish political interests from ruling including the selfish majority will” o “to assure deliberative government that defines and carries out the national interest” (Lecture Summaries 13)

No. 47 – Main Argument o “The separation of powers protects liberty” o Criticism and Madison’s Response: n Critics alleged “that the new document does not adhere to the above maxim” (motto) o Because the “legislative, executive, and judicial powers are intertwined. ” n Madison response: o “…separation of powers does not mean total separation. n One branch cannot completely control another. n Overlapping powers (The Setting of… 5)

No. 48 o Main argument: n “Creating ‘parchment barriers’ in the Constitution won’t be enough to maintain separation of powers and the liberty protected by separation of powers. ” n “Madison feared that in a government founded on popular sovereignty, the legislative branch will be the most powerful. ” (The Setting of… 6)

No. 51 o Main argument: n “Ambition must be made to counteract ambition” n Madison’s reasoning: o Each branch n Own will n Independent (as possible) n Ability to resist encroachment from another branch § Ex: Legislature – divided into two houses Executive – veto over legislation (The Setting of… 6)

Marbury v. Madison o Judicial Review o Remember these main points: n Constitution = supreme law of the land n Supreme Court’s duty = “to interpret the Constitution & say what the law is” n “Supreme Court’s interpretation of the Constitution binds both Congress and the President” o therefore, “the Supreme Court has the power of judicial review over Congress and the President” o but, “the Court should exercise judicial selfrestraint in cases involving political questions” (Lecture Summaries 13)

“How Not to Read the Constitution” o Main Argument: n Interpreting the Constitutiono “looking beyond the specific views of the Framers” n Reasoning: o Framework – “balancing liberty against power” o Adapting from generation to generation – “difficult and complex” n Judges should not impose personal viewpoints (The Setting of… 7)

Questions: 1. What was the main purpose, according to James Madison, for Federalist 47? n To examine the actual structure of the government and the division of power between the branches of government.

According to Madison, what was the meaning of the following sayings by Montesquieu: “there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates”; “if the power of judging be not separated from the legislative and executive powers”? o “…where the whole power of one department is exercised by the same hands which posses the whole power of another department, the fundamental principles of a free constitution are subverted…” o Separation of power is essential for when one branch of government holds all of the power over the other branches of government it weakens or undermines the basic philosophy of a free constitution.

Explain the following statement in by Madison: “…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. ” o In order for a free government to function properly it is critical that there be checks and balances of power between and among the branches.

o Discuss: “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. ”

Madison expressed the concern about one particular branch having excessive power; explain why and how this was resolved. o The legislative branch tends to dominate in a republican form of government, therefore, the legislative branch needed to be divided – thus we have the Senate and the House of Representatives.

o What is Tribe and Dorf trying to imply regarding the Constitution? n Constitution – “balancing liberty against power” (Woll 47) n Framework, not blueprint (Woll 47) n How to read the Constitution: o “find principles of interpretation that can anchor the Constitution” (Woll 49) n Problem: § Too much room for imagination. (Woll 49) § Judges imposing their own viewpoints

Works Cited Woll, Peter. American Government Reading and Cases. 16 th Ed. Pearson/Longman. New York. 2006. Woll, Peter. Lecture Summaries. Brandeis University. 10 Aug 2005. http: //people. brandeis. edu/~woll/wollwebsites. html Woll, Peter. The Setting of the American System. Brandeis University. 9 Sept 2005 http: //people. brandeis. edu/~woll/pol 14 b. Adobe. html