This year has seen the longest government shutdown in American history over President Trump’s attempts to force funding for a wall on the border with Mexico – Congress denied him the funds – as well as the release of the Mueller report that found there was no criminal collusion with Russia by Trump’s campaign for president in 2016, but failed to exonerate the president on the matter of obstruction of justice. At least, that’s where it stands at the time of writing this. The unredacted version of the report is yet to be seen. I read in the paper this morning that Democrats are still divided over whether to press ahead with impeachment against the president. One of the limitations Democrats face is public opinion, since there will be a proportion of the population who either don’t care or believe that Justice Barr’s summation of Mueller’s report has closed the case. Some Democrats will have to defend marginal seats in the next election, so any attempt to impeach the president could backfire for them at the ballot box.
This is the context in which I’m currently reading the Federalist Papers, written over two hundred years ago. But the issues addressed by them are still relevant to modern America and the world. For instance, in this paper Madison continues his discussion on the separation of the powers of the branches of government: the executive, the legislative and the judiciary. Trump’s presidency has been an interesting example of this issue, from the initial overturning of his executive order by the judiciary of travel bans deemed to be discriminatory against Muslims, to his fight to install Brett Kavanaugh as a High Court judge, to the ever-present buzz about impeachment issuing from Congress, and Congress’s refusal to back down over the wall.
In this paper, Madison’s key argument is that it is not enough merely to define the limitations of powers for each of the three branches of government through the Constitution. Following from his argument in the previous Federalist Paper, Madison argues that each branch of government must possess the power to check other branches of government in order to avoid the encroachment of power from one branch to another. Madison argues that it is not enough to assume the threat of despotism was defeated with the overthrow of monarchy. In a government where powers reside with a hereditary monarch, he argues, that that is where the danger lies. However, he further states, it is just as possible for the legislative or executive branch of a republican government to gather too much power by encroaching upon the powers of other branches. In the case of modern America, Democrats might argue that the executive gained too much power when Trump succeeded in his bid to have Brett Kavanaugh sit on the High Court Bench [or more telling, the appointment of Amy Coney Barrett in the last months of Trump's presidency, after the example of the obstruction by a Republican Senate in 2015 of Obama's pick, Merrick Garland]. Republicans might argue, however, that the legislative branch wielded too much power in frustrating the president’s attempt to build a wall at the border.
Madison chooses to focus on the powers of the legislative branch for the purposes of this paper. He suggests that since the legislative branch draws power from popular support, and since it has the legal power to allocate funds, there is a potential for the legislature to gain too much power over the judiciary and executive.
Madison uses two State constitutions as examples: Virginia and Pennsylvania.
In the case of Virginia, Madison quotes Thomas Jefferson extensively from his 'Notes on the State of Virginia'. Jefferson argues that too much power is given to the legislative body in Virginia, which, he claims,
is precisely the definition of despotic government. Jefferson says,
an elective despotism was not the government we fought for. The Virginia constitution provided no provision to separate the powers of government, which meant that the judiciary or executive could theoretically encroach into other areas of government, but such an attempt would be ineffectual, since it was the legislative branch that allocated funds. However, attempts by the legislative branch to exceed their powers would be different, since the legislative could not only allocate funds, but could make their decisions legally enforceable through acts of Assembly.
Madison next examines the role of the Council of Censors in 1783 and 1784, in Pennsylvania, in which the legislative branch had been found to flagrantly violate its constitution by:
In contrast, Madison argues that any instances where the executive exceeded its powers there were the result of the exigencies of the war, or were in concert with the expressed or known intentions of the legislature.
This is how Madison makes his argument, which he began in the previous paper, that while government branches should be independent, each branch should have the ability to check the encroachment of powers from one branch to another, in order to guard against despotism. How that is to be done is a matter for the next Federalist Paper.
23 April 2019
Revised and updated 26 May 2022