1
Federalist 47, 48, 51

• James Madison

How Not to Read the Constitution
Lawrence Tribe Michael Dorf
2
Definitions

• Federalist
• Supporters of ratification of the Constitution
  whose position promoted a stronger central
  government.

3
Anti-federalist

• Opponents of ratification of the Constitution and
  of a strong central government.

4
Federalist Papers

• A collection of 85 articles written by Hamilton,
  Jay, and Madison under the name of Publius to
  defend the Constitution in detail.

5
Lecture

• Madison the framers believed
• statesmen should govern
• strong national government was essential for the
  preservation of the national interest
• the Enlightenment and its faith in reason,
  progress, and the ability of men to govern in a
  deliberate and selfless way
• Mechanism
• Separation of powers
• Checks and balances
• Goal advancement of the national interest

(Lecture Summaries 12)
6
Madisonian Model 18th Century Model of
Government

• One in the same
• balanced government
• to prevent selfish political interests from
  ruling including the selfish majority will
• to assure deliberative government that defines
  and carries out the national interest

(Lecture Summaries 13)
7
No. 47 Main Argument

• The separation of powers protects liberty
• Criticism and Madisons Response
• Critics alleged that the new document does not
  adhere to the adhere to the above maxim (motto)
• Because the legislative, executive, and judicial
  powers are intertwined.
• Madison response
• separation of powers does not mean total
  separation.
• One branch cannot completely control another.
• Overlapping powers

(The Setting of 5)
8
No. 48

• Main argument
• Creating parchment barriers in the
  Constitution wont be enough to maintain
  separation of powers and the liberty protected by
  separation of powers.
• Madison feared that in a government founded on
  popular sovereignty, the legislative branch will
  be the most powerful.

(The Setting of 6)
9
No. 51

• Main argument
• Ambition must be made to counteract ambition
• Madisons reasoning
• Each branch
• Own will
• Independent (as possible)
• Ability to resist encroachment from another
  branch
• Ex Legislature divided into two houses
• Executive veto over legislation

(The Setting of 6)
10
Marbury v. Madison

• Judicial Review
• Remember these main points
• Constitution supreme law of the land
• Supreme Courts duty to interpret the
  Constitution say what the law is
• Supreme Courts interpretation of the
  Constitution binds both Congress and the
  President
• therefore, the Supreme Court has the power of
  judicial review over Congress and the President
• but, the Court should exercise judicial
  self-restraint in cases involving political
  questions

(Lecture Summaries 13)
11
How Not to Read the Constitution

• Main Argument
• Interpreting the Constitution-
• looking beyond the specific views of the
  Framers
• Reasoning
• Framework balancing liberty against power
• Adapting from generation to generation
• difficult and complex
• Judges should not impose personal viewpoints

(The Setting of 7)
12
Questions

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

13
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?

• 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
• 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.

14
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.

• 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.

15

• 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.

16
Madison expressed the concern about one
particular branch having excessive power explain
why and how this was resolved.

• 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.
  

17

• What is Tribe and Dorf trying to imply regarding
  the Constitution?
• Constitution balancing liberty against power
• Framework, not blueprint
• How to read the Constitution
• find principles of interpretation that can
  anchor the Constitution
• Problem
• Too much room for imagination.
• Judges imposing their own viewpoints

(Woll 47)
(Woll 47)
(Woll 49)
(Woll 49)
18
Works Cited

• Woll, Peter. American Government Reading and
  Cases. 16th Ed. Pearson/Longman. New York. 2006.
• Woll, Peter. Lecture Summaries. Brandeis
  University. 10 Aug 2005. http//people.brandeis.ed
  u/woll/wollwebsites.html
• Woll, Peter. The Setting of the American System.
  Brandeis University. 9 Sept 2005
  http//people.brandeis.edu/woll/pol14bAdobe.html