Constitutional Law I: Federalist Papers

Federalist No. 39

"On examining the first relation, it appears, on one hand, that the Constitution is 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." "Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."

Federalist No. 41

Concerned about the extent of power to be vested in the government. Extensive powers for the national government were "necessary means of attaining a necessary end." The national government should have unlimited power to raise armies and equip fleets for self-defense but would not be "crushed between standing armies and perpetual taxes. . . ."

Federalist No. 81

Hamilton a stresses single national judiciary. He is then hesitant to pick how to decide who is on the judiciary. He doesn't know if it should be judges or members of the legislative branch. He argues that if you give members of the legislative branch that kind of power, then the errors that the judiciary will make will be uncontrollable. Hamilton then states that judges can construe the laws in the spirit of the constitution. He states that the constitution should be supreme to the laws of the United States.

Federalist No. 84

Hamilton argues that a Bill of Rights--a listing of the protections against government infringement of individual rights guaranteed to citizens by government itself--is not necessary in a constitution. Bill of Rights were already in the body of the text. Having one would actually be dangerous. If the Constitution were prefaced with a list of things government could not do to individuals, government would assume it had the power to do anything that wasn't forbidden.

Federalist No. 1

Hamilton says Americans have the opportunity and obligation to "decide the important question" can "good government" be established by "reflection and choice," or is mankind "forever destined to depend for their political constitutions on accident and force."

Federalist No. 78

May 28, 1788- Essay by Hamilton - "purse nor the sword;" Addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life. Judiciary branch of the proposed government would be the weakest of the three. "FORCE nor WILL" to enforce its judgments, there was little concern that the judiciary would be able to overpower the political branches. Make and enforce the law: Congress controls the money flow and the President controls the military good behavior tenure.

Federalist No. 67

President is not a Monarch. Not as powerful. (Dissenters worried would be a tyrant) "May even be less powerful than the governor of New York."

Federalist No. 47

Some people object that constitution violates separation of powers; Agrees that too much power in one branch of gov leads to tyranny, but does not believe that there is too much vested in any of American branches; Montesquieu's original idea for separation of powers came from British constitution, in which none of branches are totally separate from one another; Madison infers that M did not mean that branches should not have "partial agency" over each other; looks at existing state constitutions to prove that partial agency does not violate separation of powers.

Federalist No. 43

Theme: Federal Power Focus: This essay examines the fourth class of federal power "certain miscellaneous objects of general utility." • namely, the republican guarantee clause. The main issues here are a) "to defend the system against aristocratic or monarchical innovations," and b) to protect the principle of majority rule against the actions of a minority of "adventurers." • Madison also discusses Article VII. This clause provides for ratification of the Constitution by nine out of thirteen specially called conventions.

Federalist No. 71

Theme: Presidential Power An essay in which Hamilton opines that the Constitutional four-year term limit set on the president has 2 purposes: To maintain personal firmness in the executive branch and to keep the executive branch stable at least for the four-year period.

Federalist No. 72

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.

Federalist No. 77

Theme: Presidential Power Focus: the issue of energy and how these ingredients can be combined with others that are safe in the republican sense? Hamilton claims that an added advantage "to the stability of the administration," is that the consent of the Senate "would be necessary to remove as well as to appoint."

Federalist No. 69

Theme: Presidential Power Focus:Powers of the executive and their meaning, compares presidency to governorship v. king The "real character of the proposed executive" is revealed in terms of the organization and powers tests. The tests are 1) "single magistrate," 2) "four years; and is to be re-eligible," 3) impeachment and removal from office, 4) "qualified negative of the Presidency," 5) "occasional... commander-in-chief" power which "would amount to nothing more than the supreme command and direction" of the armed forces, 6) power to pardon, 7) power to "adjourn the legislature," 8) with the "advice and consent of the Senate, to make treaties," 9) power to "receive ambassadors and public ministers," 10) "the power to nominate and appoint."

Federalist No. 68

Theme: Presidential Power Focus:defending the Presidency Presidency against the "unfairness" of the Antifederalist "representations." the "mode of appointment" by the Electoral College "is almost the only part of the system, of any consequence, which has escaped without severe censure." "this process of election affords a moral certainty that the office of President" will be "filled by characters pre-eminent for ability and virtue." This is important since "the true test of a good government is its aptitude and tendency to produce a good administration." And a good executive is central to a good administration

Federalist No. 70

Theme: Presidential Power Hamilton; argued for a unitary, one-person executive

Federalist No. 73

Theme: Presidential Power Written by Alexander Hamilton -Titled "The Provision For The Support of the Executive, and the Veto Power" -Justifies the Executive branch's powers over the Legislature

Federalist No. 48

Theme: Separation of powers/ federalism Focus: Madison declares that "the most difficult task" is to provide "some practical" security for each branch against "the invasion of the others." • Madison notes tyranny is far more likely in the legislative branch and that a hundred despots is far worse then one.

Federalist No. 51

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."

Federalist No. 40

Theme: legitimacy of Constitution Focus: Madison focuses on whether the convention was "authorized to propose such a government?" • delegates were authorized to frame a government "adequate to the exigencies of the Union," and they performed that task, and • Madison acknowledges that there are some doubts that Congress authorized the delegates to devise a plan that totally overhauled, rather than simply amended, the Articles. • Says the really important question is NOT is the plan legal in the narrow sense of the term, but "whether the advice (of the Convention) be good?"

Federalist No. 49

in response to TJ's proposal that constitutional convention be held when two-thirds of 2/3 branches want to change constitution; legislature can easily influence one of other two branches, resulting amendments not maintain checks and balances; if exec and judiciary appealed to public, doubtful that they would win sympathies of people, as they are smallest branches, and legislators would dominate the convention called to correct it; frequent appeals to people threaten stability of government, making citizens lose veneration for government, give into public passions