Module 04 Sections
While the Constitution is reasonably clear on the three governing institutions, the separation of powers principle underlies the entire document, and this notion is not presented clearly and succinctly in any one place within the document itself. Instead, the relevant ideas are scattered throughout the Constitution. The same thing can be said of federalism. The best place to turn for an initial discussion of these concepts is not to the Constitution at all, but to The Federalist, where they are covered somewhat thematically throughout the book.
Both federalism and the separation of powers principle are checks on federal power.
They serve to limit the ability of the federal government to become destructive of the rights and liberties of the people, because in the end, these were the very things that the Constitution was established to ensure.
Federalism is the division of power between the states and the national government. The United States began with a system generally known as “dual federalism.” In short, the national government and the state governments were understood to be equally powerful within their own proper spheres of activity. The national government was limited in a number of ways, many of which we will consider in the institutional units which follow this one. But the most meaningful limitation on the national government was a result of its very nature: It was designed to be a government of enumerated, or listed powers. Only the powers specifically granted to the national government in the Constitution could be exercised. Everything else was left to the states.
In order to make this perfectly clear, the 10th Amendment was added to the Constitution as part of the Bill of Rights, which is comprised of the first ten Amendments. The 10th Amendment simply states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Listen to 60-Second Civics: “Episode 2011: Federalism” for a general primer on federalism:
It was not until the wake of the Civil War that things began to change in terms of people’s thoughts on the proper role of the states in the federal system. And it was not until the New Deal in the 1930s that things started to change in earnest.
During the New Deal era, the United States shifted away from the idea of dual federalism, and adopted instead (slowly, over time) a system of cooperative federalism. When this shift occurred, states were no longer seen as a bulwark against encroachment on the part of the national government; they came to be seen as willing partners in carrying out national policy. This was when that unanswered question of whether the United States was one people, or many collected states, was finally answered in full.
Have a look at this video to get an historical sense of the shifting tides of federalism over the course of American history:
While it is clear that the United States has become a single nation, comprised of a single people, the view from The Federalist is decidedly different. Have a look at Federalist 39 to get a sense of the difference in orientation, then to now.
You can find Federalist 39 here:
In this number, Publius explains that the Constitution appears:
…to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.
According to the men who wrote the Constitution, then, it was the states that mattered. People were citizens of the states, and the states came together to form a federal, rather than a national government. The difference between the two words is a meaningful one. A federal government is one that brings together a number of constituent parts (the states) under a single head, whereas a national government presides over a singular unit (the people) simply.
Making the point more clearly, Publius foreshadows the 10th Amendment when he says of the Constitution in the same number that:
…its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.
Of course, this is undermined in the very same number, which Publius concludes by saying, “The proposed constitution…is, in strictness, neither a national nor a federal constitution; but a combination of both.” So much for clarity. This question would have to be shelved for another day.
Next, have a look at Federalist 45, which you can find here:
In this number, Publius asks the very simple question of whether “the whole mass” of the powers granted to the federal government “will be dangerous to the portion of authority left in the several states.”
This question is answered in the negative, with no equivocation, for a few very clear reasons. Most broadly, he asserts that, “The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite.”
So the very structure of the government, with only enumerated powers granted to the federal government, leads to a situation wherein the federal government is very narrowly defined. The state governments will simply have a lot more to do than the federal government under the original plan, and this would serve to keep the federal government under control.
As if this weren’t enough, he points out that the federal government will need the states in order to function, but the reverse is not true. “The state governments may be regarded as constituent and essential parts of the federal government,” he writes, but “the latter is no wise essential to the operation or organization of the former.”
Finally, Publius tells us that the state governments will employ far more people than the federal government:
The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive.
All of these considerations would, according to Publius, serve to keep the federal government in its place. They would render it difficult for any schemes of oppression to be brought to life because there would be a layer of security, in the form of the states, applied to the federal government. If people considered themselves citizens of their states, first and foremost, then they would exercise their authority as such in order to keep the federal government at bay.
Opponents of the Constitution remained unconvinced, in part because of the inclusion of the Supremacy Clause in the Constitution, which can be found in Article VI. It states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This means, quite simply, that federal law trumps state law, and the Constitution trumps all. The net effect of this is that state laws must be in conformity with federal law and the United States Constitution, which has, throughout American history, caused some friction. Presently, one issue causing such friction is gun rights, which pits the 2nd Amendment against various state laws which regulate gun rights in significantly different ways.
Have a look at this video to get a sense of how complicated these issues can become:
Separation of Powers
Like federalism, the separation of powers principle was designed as a check on federal authority. But whereas federalism was a check from without in the form of the states, separation of powers is a check from within.
The phrase most often associated with the separation of powers is “checks and balances.” Another, more accurate phrase appears in Federalist 47: “partial agency.”
For a brief overview of separation of powers, listen the following podcast from 60-Second Civics:
The idea behind these phrases is a simple one: By setting the departments of government against one another, institutionally, it will become very difficult for any one branch of government to assert its will against the other two. The branches will thus be in a constant struggle with each other, rendering the people safe from undue encroachments of power.
Watch this short video to get a sense of the separation of powers principle:
The separation of powers sequence in The Federalist is presented in the second half of the work, when the specifics of the proposed Constitution are finally addressed. These numbers are presented immediately prior to those which explain the individual institutions which will comprise the new government.
It is telling that the separation of powers is presented before the powers themselves.
Opponents of the Constitution, known as Anti-Federalists, observed that the separation of powers as proposed did not offer enough separation between the branches of government. They believed that powers needed to be separated completely. Publius disagreed. Rather, he said, powers needed to be separated generally, but that they also needed to be blended when appropriate. This is the concept of partial agency, or checks and balances.
You can have a look at this graphic to see just how much agency each branch of government has in the operations of the other two. Keep in mind when you look at the graphic that this presentation just touches the surface of the issue. Things are even more complicated than this.
Publius presents the Anti-Federalist position in the opening lines of Federalist 47:
One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim that the legislative, executive, and judiciary departments, ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favour of liberty. The several departments of power are distributed and blended in such a manner, as at once to destroy all symmetry and beauty of the form: and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
You can read the rest of Federalist 47 here:
The problem, as the Anti-Federalists saw it, was that a maxim had been violated. The separation of powers of the Constitution was not pronounced enough to suit the “respectable adversaries” of the plan. Their mistake, according to Publius, was that they relied on political maxims to guide their thought; they believed that practical politics could live up to the “symmetry and beauty of form.” They did not correctly appreciate the limits which people face in the political realm. The main point that these opponents overlooked was that republican government itself can, and has, become the enemy of liberty. In response to this criticism Publius wrote, quite forcefully, that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands” he says, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Notice what Publius has done in this brief section. He asserted that the accumulation of all powers in the same hands is tyranny. It doesn’t matter at all whose hands those might be.
In Numbers 48-50, Publius considers three methods of providing for the security of the separation of powers, rejects each, then offers his own solution in #51. The first method, which occupies him for almost the entirety of #48, is put forth in a question in the third paragraph. Publius asks, “Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?”
You can read the rest of Federalist 48 here:
This question clearly implies that simple prohibitions will not be up to the task of maintaining an equilibrium between the branches in the day-to-day struggle of politics. For reasons that will become clear when we consider Federalist 51, Publius believes that human nature is such that people will inevitably attempt to further their own ends at the expense of others when possible. In a constitutional republic, he says, this will come to mean that the legislative branch will, by its very nature, aggrandize all power to itself. He writes, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.”
The Framers were not primarily concerned with the President’s becoming monarchical; but they were deeply concerned with limiting the power of Congress. If this branch were left unattended, according to Publius, it would eventually overtake the other two. About the legislative branch in a condition of self-governance, Publius says:
in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions.
Simple constitutional prohibitions, which Publius refers to as “parchment barriers,” will be powerless in the end. It is simply not enough to have some rules written down on a piece of paper, even if that piece of paper is the Constitution of the United States of America. Other precautions are required.
So why is the legislature in the American system so powerful, and by extension so dangerous? First, the legislature is inspired by a supposed influence over the people, and it is capable of pursuing the objects of its own passions. Second, its powers are more extensive and more difficult to limit, so that it can hide what it is doing in many cases under complicated and indirect measures. The executive and judicial powers are by nature simpler. Third, the legislature alone has access to the people’s pockets and determines the salaries of those who will fill other departments. The three solutions one might expect, then, are first separating the legislature from the people or destroying its distinctive claim to speak for the people. Second, defining the legislature’s powers. And third, depriving the legislature of its influence over the salaries of the other departments. All of these are accomplished, says Publius, in the Federal Constitution, and the first two especially point to the judiciary in its role of upholding the Constitution against the legislature, thus attaching the people to the Constitution itself rather than to the legislature.
Federalist 49 and 50 concern the notion that the people can provide a bulwark against the encroachments of the legislature. We know, however, that the Constitution sets forth a schematic for the indirect representation of the people. This is, to say the least, problematic.
You can read Federalist 49 here:
And Federalist 50 here:
All of this is simply prelude to Federalist 51, which both returns to the pragmatic approach to the separation of powers principle and marks a high theoretical point in The Federalist.
If neither parchment barriers nor recurrence to the people is sufficient to maintain the separation of powers, what is the answer? In numbers 49 and 50, Publius hinted at the possibility of appealing to reason, rather than the passions in support of the Constitution. Instead, he comes to hold that “the only answer that can be given” is “that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the internal 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.” He has come full circle then, back to the opening lines of number 47.
Number 51 presents the idea of the separation of powers as an end in and of itself, rather than as a means to another end. Ultimately, separation is for the sake of liberty, but the principles which will allow for the separation are all but ignored here. Separation is presented as occupying a middle ground between reason, which is always good, and the passions, which are always destructive. Ultimately, this rests on the belief that both the reason of the people and their passions can be incorporated into the government through this plan for separation of powers.
To begin, Publius remarks that each department of the government should possess a certain amount of autonomy. He writes that “it is evident that 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.”
You can read Federalist 51 here:
Returning to the opening, each branch of government is to have a certain type of self-directedness, which will serve to further its own interests insofar as it is able. So not only are the abilities of the branches of government to be pitted against one another, their wills are as well.
The legislative branch will legislate according to general principle. The executive will modify the plan of the legislature, in terms of its duty to enforce the laws, according to what is possible in light of political concerns. The judiciary will judge the principle employed by the legislature in light of its limitations in terms of the necessities of other principles. Separate wills in each branch of government will serve to ensure that no one branch becomes tyrannical.
A second observation shows, though, that the separation of powers and interests must be taken one step further in the practical sense. Publius writes, “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. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.”
This means, simply enough, that the departments must be free from one another in terms of money. If everyone depended upon the legislature for all of the money for day to day operation, then they would be free in name only. The various branches of government must be, in a sense, self-sufficient.
The real security in the American regime comes from an even deeper understanding of structural concerns. He writes:
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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. 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?
Ambition, then, is the link in the American system between man’s interests and his rights. Separation of powers brings together man’s interests, his desire for self-government and liberty, and his rights. Ambition is the only thing that can bring these two political realities into consonance. Human nature is a force to be contended with when viewed in these terms, and human nature informs America’s governing institutions almost completely. A good system will have to take this into account.
In the end, man’s desire for more power is used against him, because when everyone is contending for power with all of the tools at their disposal, it is unlikely that anyone will achieve the power that is sought. Human nature is at once the cause of, and solution to the problems of self-government.
External mechanisms will be necessary to control the abuses of government, but this is only true because of the fact that government itself is nothing more than the greatest reflection on human nature. Publius speaks directly to the problem of human nature as it applies to government in perhaps the most famous passage in The Federalist, where he writes:
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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Publius clearly thought that a system which could divide power as much as possible while still maintaining the ability to govern would be the safest option. The power surrendered by the people is first divided into two governments in the federalist scheme. After that, it is further divided among the competing branches of the federal government. In the end, he says, a double security arises to the rights of the people. The different governments, and the various branches of the federal government, will control each other to the fullest extent possible.
To get a better sense of what the separation of powers looks like in practice, consider this: President Obama, in his first week in office, declared by Executive Order that the prison at Guantanamo Bay was to be closed within one year. It’s still open.
You can get a sense of the difficulties experienced by one branch, in this case the executive branch, in getting its way in the American constitutional system by watching this video:
- Separation of Powers
- Partial Agency/Checks and Balances