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Federalist Paper Summaries

Terms in this set (32)

Madison addresses two questions: does the Constitution pass 1) the republicanism test and 2) the federalism test? The answer depends on how we define republicanism and federalism. These are the "great difficulties" of definition.

1) " If the Constitution departs from the "strictly republican" standard, or "character," it must be rejected. What, then, is the definition of a republic? It is "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding office during good behavior."
"it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it," and it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified."

Test to measure the federalism of the Constitution: "the real character of the government" has five "considerations" to ponder when dealing with the "real character" standard.

I) "The foundation on which it is to be established." Who ratifies the Constitution, the states or the people?
II) "The sources from which its ordinary powers are to be drawn." Are the people or the states represented in the Congress?
III) "The operation of those powers." Does the government "operate" directly on the people in their "individual capacities" or on the states in "their collective and political capacities?"
IV) "The extent of '... the powers." Does the general government have "an indefinite supremacy over all persons and things," or does its jurisdiction extend "to certain enumerated objects only?"
V) "The authority by which future changes in the government are to be introduced." Are amendments secured by a majority of the people or by the unanimity of the States?

Madison: "in strictness, neither a national nor a federal Constitution, but a composition of both.
Theme: Separation of powers/foundation of Constitution
Focus:How to implement concept
1. The way to implement the theory of separation of powers in practice is to so contrive "the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

2. Accordingly, "each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others."

3. "It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices."

4. "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... "
A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions."

5. "This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public." Madison calls this policy "inventions of prudence."

6. "In republican government, the legislative authority necessarily predominates." Thus, it is "not possible to give to each department an equal power of self-defense." Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive with the power of a conditional veto

7. The general government comes closer to passing the "self-defense" of each branch test than do the State governments.

America is a "compound republic," rather than a "single republic." This provides for a "double security... 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, there are only two ways to combat "the evil" of majority faction, "by creating a will in the community independent of the majority," or creating an authoritative source "dependent on the society," but, the society "will be broken down into so many parts," that it contain a vast number and variety of interests.

"the security for civil rights must be the same as that for religious rights. "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."
Theme: Presidential Power
Focus: Duration pertaining to "the stability of the system of administration." He lists five "pernicious" "ill effects" that will occur as a result of "exclusion."
aka term limits.
1. "There is an intimate connection between the duration of the executive magistrate in office and the stability of the administration of government" which includes "foreign negotiations," public finance, and "the directions of the operations of war."

2. "With a positive duration of considerable extent, I connect the circumstance of re-eligibility." The former is vital for individual firmness; the latter for a "wise system of administration."

3. "Exclusion" from office, or term limits, for the President is "pernicious."

4. "One ill effect of the exclusion would be a diminution in inducements to good behavior."

5, 6, 7. "Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation."

8. "A third ill effect of the exclusion would be the depriving the community of the advantage of the experience gained by the Chief Magistrate in the exercise of his office." Remember, "experience is the parent of wisdom."

9. "A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the State, their presence might be of the greatest moment to the public interest or safety."

10. " A fifth ill effect" is that "by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures."

The disadvantages of exclusion outweigh the advantages.
Theme: The Judiciary
Focus: Composition and extent

1st. The mode of appointing the judges.
2nd. The tenure by which they are to hold their places.
3rd. The partition of the judicial authority between different courts and their relations to each other."

"As to tenure by which the judges are to hold their places: this chiefly concerns [1] their duration in office, [II] the provisions for their support, [III] the precaution for their responsibility." The remainder of the essay covers the case for [I] their duration in office. {Article III, Section 1.}

"The standard of good behavior...is certainly one of the most valuable of the modern improvements in the practice of government." It helps the judiciary to resist "legislative encroachment."
He makes the case for "permanent tenure" to resist the encroachment of the legislature.

The judiciary "will always be the least dangerous to the political rights of the Constitution.... It may truly be said to have neither FORCE nor WILL but merely judgment."

The judiciary is "the weakest of the three departments of power," and its "natural feebleness" needs fortification.

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. It is the "duty" of the courts, "to declare all acts contrary to the manifest tenor of the constitution void."

Anti-federalist think the "doctrine would imply a superiority of the judiciary to the legislative power."

"The legislature cannot be the constitutional judges of their own powers." The Constitution is the fundamental law and it belongs to the courts to "ascertain its meaning" and to secure "the intention of the people" over "the intention of their agents" whenever there is "an irreconcilable variance between the two." "The interpretation of the laws is the proper and peculiar province of the courts."
Since the Constitution is the "fundamental law," it therefore belongs to the Supreme Courts "to ascertain its meaning."

"Permanent tenure" can help to resist the "ill humors" that may momentarily "lay hold" of the people to violate the Constitution. "As faithful guardians of the Constitution," the courts must restore the norm of "more deliberate reflection."

It can also help to resist legislative efforts to injure "the private rights of particular classes of citizens, by unjust and partial laws."

It is needed so that courts provide "inflexible adherence to the rights of the Constitution, and of individuals."

It is needed to attract individuals with the "requisite integrity," and the "requisite knowledge" to handle the "variety of controversies which grow out of the folly and wickedness of mankind."

"Good behavior" for justices has the added benefit of securing "good government."