Turning now to Federalist 51, let us again engage in a close reading of the text. By now Madison is expressing concern that an outward division of power is not up to the task of protecting against the abuse of power. What sort of abuse? How about Bastiat’s concept of legal plunder? How about the “mimetic contagion,” as René Girard called it, which can result from envying one’s neighbors and coveting what they have? At the end of Federalist 10, Madison gives a good theoretical account of the advantage of an extended federal system: “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. . . .” From these words it should be clear that Madison has deep concerns—ones that are not allayed by the simple architecture of a separation of powers. To paraphrase, Madison opens Federalist 51 with a question: Given the inadequacy of a merely external separation of powers, how is the defect to be remedied? His answer is that “the defect must be supplied, by so contriving 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.” Thus the Separation of Powers must be supplemented by Checks and Balances. As he develops his argument, Madison elaborates upon this point. Each branch or department of the government should have a will of its own. From this it follows that members of each major branch should have little say in the appointment of members of the others. How can this be accomplished? In a republic the power of appointment should be drawn from the same fountain of authority, the people, but it should be drawn through separate channels. Let us consider for a moment how the framers designed these channels or lines of authority. Members of the House of Representatives hold seats that are apportioned among the states according to population. They are directly elected by the local citizens of their home districts for a two year term of office. Corporately they make up a national legislature representing all the people and have the responsibility to introducing all bills related to taxing and spending. Until the ratification of the Seventeenth Amendment in 1913 during the Progressive era, senators were elected to six year terms by members of their home state’s legislature, who, in turn, were themselves elected by the people. Thus popular representation was indirect and states were given a voice in what James Madison called the “federal legislature.” Even more elaborate safeguards were built into presidential elections to ensure that the presidents were representative of all the people and that they had been thoroughly vetted. The Electoral College is somewhat akin to a grand jury that is temporarily summoned for an important public service. It is also akin to the federal system of electors that once chose the Holy Roman Emperor and resembles the College of Cardinals that assembles in Rome to choose the Pope. Each state was obliged elect or appoint electors, usually prominent citizens who had some leadership experience, who could act as a political filter to sift and evaluate the qualities of the candidates. Following the general election, the electors would meet in the state capitals and cast their votes. A list of all the people voted for would be certified, sealed, and sent to the national capital. There the certificates are opened about a month later by the President of the Senate in the presence of the Speaker of the House and the votes are counted at the opening of a newly elected Congress. Finally, the justices of the Supreme Court and judges of the lower federal courts are appointed by the president with the advice and consent of the Senate: that is, the federal legislature. The idea in each case is both to represent “We the People” through several different channels of expression and to filter the people’s sentiments, which can be both self-contradictory and highly volatile at times. The great security against a gradual concentration of power, Madison believed, was to give the heads of agencies the constitutional means and personal motives to resist encroachments on their authority. Madison expected them to engage in turf battles: “Ambition must be made to counteract ambition.” Thus their personal interest had to be connected with the rights of their office.
Steven Samson - “Rival Traditions of Liberty: America vs. The EU”
