topic 1

Essentially, the debate is whether the proposed Constitution created a system of government that had a legitimate power balance between the branches.

Here is a crucial point to understand for this debate and for political science in general

The balance or "ratio" of power between the branches was meant as a means to an end to protect the rights of the people. This wasn't a mathematical equation with any value in the ratio itself. To Madison, the correct balance of power between the branches was the one that protected the people. Political "Science" is not meant to find "equations" of inherent value or worth (like the value of pi or the Pythagorean theorem) but rather to discuss how government is created and maintained to serve the people's needs and rights. To Madison, any balance between the branches that protected the people was correct. To Madison, any balance between the National and State governments that protected the people was correct. If that meant there was an asymmetry, that was fine. If the National government had to be stronger than the State governments, so be it. If the Legislature had to be stronger than the Executive Branch for people's rights to be protected, so be it. This was purely an exercise in the "ends justifying the means" with our rights as the "ends."

Federalist Papers 47, 48, 51.

Federalist 47 - by James Madison

It is titled "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts." This article starts the discussion of Separation of Powers. Critics of the proposed Constitution were concerned that it didn't create an adequate enough separation of powers between the 3 planned government branches.

Despite the philosophical language of the 1780's, Madison is actually making a fierce and antagonistic point against the Anti-Federalists. He is taking their own words and using them against their preferred state government in order to show that their complaints against the Constitution are, at best, misplaced, and, at worst, hypocritical.

So this article actually reads more easily if you imagine an angry Madison using his opponents own words against him rather than seeing this as a philosophical treatise. Does your image of Madison wearing a powdered wig cause the anger to come through less? Perhaps, but realize that this Article is actually a lot closer to an angry editorial in a newspaper, disguised in philosophical language, than a purely academic exercise.

The main purpose of 47 was to show how the National Constitution was similar to State Constitutions in setting up branches that were not entirely separate from each other.

"The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of 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."

Madison acknowledged that there was indeed some interaction between the three branches but made the argument that it was necessary to do so. He referenced Montesquieu who was a French political philosopher.

Madison used his discussion of Montesquieu in two main ways:

Explain Montesquieu's definition of tyranny and show how the Anti-Federalists were misusing that term in their attempt to criticize the Constitution.

Show how the Anti-Federalists' favored State Constitutions were closer to Montesquieu's actual definition of tyranny than the Anti-Federalists realized and closer to tyranny than the proposed National Constitution that Madison favored.

Montesquieu was the authority who many referenced when they said that tyranny results from something other than a complete separation of branches. However, according to Madison - Montesquieu never said exactly that. Rather, Montesquieu only said that tyranny occurs when one branch of government holds the powers of another branch. Madison said people misinterpreted what that meant and so he sought to clarify it. To Madison, Montesquieu didn't mean that each branch should be 100% separate, just that there shouldn't be one branch whose power is controlled entirely by another.

"His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted."

They shouldn't share the exact same powers, but they shouldn't be utterly distinct and separate from each other. Next, after explaining how Montesquieu's principle wasn't about complete separation, and fending off some critics of the National Constitution, he turned to other critics: those who thought the State Constitutions were superior due to having totally separate branches. Madison showed how the State Constitutions did not have branches as separate and distinct as many wanted the National Government to be - with the reason for many wanting that because they were afraid that the States would lose power due to a strong national government. It was Madison saying - if you like State government so much that you are scared of the National government taking power, then how come you are okay with the States having non-distinct branches? He spends the rest of this article diving into the particulars of State Constitutions and showing how the sharing of powers exists on the State level and is actually a good thing.

Even more pointedly, Madison easily illustrates how the States that actually outright declare they have a complete separation of branches do not have that at all. He concludes:

"What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America."

So rather than be entirely separate, and rather than sharing the same powers, Madison proposed a system of "Checks and balances" similar to how many State Constitutions did, at least in theory (we'll get into why some states had issues in Federalist 48). Madison said that if the states were okay with their government branches having some control over each other, they should be okay with the concept of the branches of the National government doing that too as a result of the Constitution. This countered the Anti-Federalists and opponents of the Constitution while also winning more supporters.

Newspaper editorials about politics clearly still exist today. But it is rare to see them take on such a philosophical tone and appeal to "political science."

*Discussion Question: Would political debates be better today if they were posed in Madison's rhetorical philosophical style (but without the language of the 1800's) or would they lose accessibility to the general public? Could some of the volatility of modern debates be avoided, or would it just be hidden in philosophical language?

Federalist 48 by James Madison

This article is continued from Federalist 47. The title of 48 is: "These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other."

Federalist 47 was dedicated to Madison explaining why the political philosophy of Montesquieu did not actually argue for 100% separation. Federalist 48 is dedicated to Madison showing why 100% separation would not be a good thing.

"I shall undertake, in the next place, to show that 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.... "After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others."

Madison is chiefly concerned about one of the branches taking over the power of another branch. This is a problem on its own but especially a problem for Madison's objective of protecting the rights and freedom of the people. He starts by saying that the key here is to connect and blend the branches so as to give each one some control over the other. This is the next part of his argument for "checks and balances" between the branches.

Madison turns to the dangers of a Legislative Branch in gathering too much power in a Republic, contrary to how an Executive branch may become too strong in other political arrangements. It's very clear that the Legislative Branch is Madison's biggest concern. One reason for that is the concern about the tyranny of the majority. He singles out the legislative branch as being the branch most able and likely to encroach on other branches.

He even quotes Thomas Jefferson who says the same thing: "One hundred and seventy-three despots would surely be as oppressive as one. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."

Madison was as concerned about elected officials like state and national legislature taking all of our power as he was about unelected ones like the King of England.

Madison said even though people were basing proposed state laws on the idea that the three branches should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time, no actual barrier was provided between the branches. The warning was there, but no legal mechanism to stop branch overreaching from occurring. Legislative violations already occurred in VA.

A law without any enforcement follow-through is not really a law. So when Madison drafted the Federal Constitution, he tried to make actual rules preventing someone from claiming the power of all three branches in the way that some States failed to do so.

People often consider democracy to be the most "free" type of government. However, as Madison points out, democracy can be a gateway to "elective despotism." Just because we elect officials does not mean we maintain our rights and freedom.

*Discussion Question: How can democracy directly lead to a tyrannical government even if the elections are legal and the actions of the government are constitutional?

Federalist 51: Checks and Balances and Separation of Powers in the National Government.

Madison discusses the problem of a branch having a likelihood to take power from the other branches (and people) in a system where each branch is 100% separate. Keep in mind that Madison doesn't really mention the term "checks" here until the end, but this is all leading to his overall argument in favor of "checks and balances" as a system.

"TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? 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 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."

"Defect" in the system: He calls it a defect - a negative term - but he designs it as a solution.

The defect is the idea that each branch has some vulnerability to the other. That all adds up to an equality of power between the branches since each one can influence the other.

This is the recipe for a balancing of power by the branches rather than pure separate, independence that the Anti-Federalists advocated for. Madison wanted to make sure that each branch has a clear but limited power in affecting the intent of the other branches. He was saying that we can't be too afraid of the national government if one branch doesn't have the ability to get too strong, take over the others, and attack the people. And one branch can't be too strong if each branch has vulnerabilities the other ones can exploit. The "defects" in each branch allow for the overall effectiveness of the government in operating and also in being limited from attacking the people and states.

One example of a "defect" relates to what we refer to as "gridlock" in the government. If Congress was stronger, they would be able to act even quicker to create laws and to do what those in power want. And although political partisanship is one reason for the gridlock, another reason is simply that Congress was split up into two houses so that the branch as a whole would be weaker against the other branches and against the people.

*Discussion Question: Can you think of ways in which "gridlock" has helped the rights of the people by forcing Congress to be more unified before moving forward with a plan?

The next section of the essay is key: It describes the method and the reason for maintaining an experimental government by the people that does not actually trample over the people.

The method:

"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."

"Ambition must be made to counteract ambition" = Pit one branch against another branch to make sure that no branch has any more power than another despite their desire to. This is worth reading multiple times as it frames the entire philosophy behind having a government that the founders knew, by its nature, required oversight therefore was made less to ensure perfection and more to avoid governmental tyranny: tyranny as defined by Madison's interpretation of Montesquieu's usage of the term.

The reason:

"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? 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."

Madison is saying here, outright, that we cannot expect a perfect government since we cannot expect perfect people to run it. To Madison, government is an imperfect, necessary evil to govern imperfect people. The government that is best is the one that we recognize needs to be controlled from within and from the outside. We need the government to control the people, but we also need the government to control itself and be watched by the people.

As much as history sometimes makes it seem like the founders believed they created some kind of perfect government, this is far from the truth. The Constitution was a compromise that followed a fundamental cynicism of the people and a government run by the people.

One can say that Madison's objective in prohibiting the government from violating our rights was as important to him as his objective in creating the government to stop citizens from violating each other's rights. He spent as much time discussing the dangers of government as he did discuss the dangers without government. Although one can say he deferred to many of his own influences, like John Locke, in making that argument which he largely took for granted.

*Discussion Question: Even though most people would agree that the government in the U.S. has never been perfect, are you surprised to learn that the architect of the Constitution never believed that it could be anything close to perfect and even designed a system to weaken it? Do you consider Madison to be a cynic or a realist in his cautionary vision of the government?

Now we go back to "the method" to find a way to keep the government restrained.

"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. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."

The way to allow each branch to be independent is to give each branch an override in cases where a rival branch tries to steal its powers. The president has a veto, Congress has a veto override, and the Courts have the final say on a law until Congress makes a new law. Congress and the President are held accountable by the people through voting. It's an intentional confusing mess that was intended to make sure no branch gets too powerful.

"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."

The branches of government can be connected while still remaining "Separate and distinct" in the specific powers that they each yield. The reason for that desire for connection is that 1) they are still part of the government for one country. And there needs to be some interaction between them in order for the government to work. 2) In order to maintain a proper separation, there has to be some kind of Constitutional Control of one over the other. A kind of "check". Specifically: "Checks and balances."

Has anyone ever watched cowboy/western movies? There is a specific type of confrontation called a "truel" or a "Mexican standoff." Instead of a standard duel between just two enemies, the "Mexican Standoff" was between three pointing their guns at each other. "Truel" = a fight amongst three people rather than "duel" = fight between two. Each party "checked" the other two from acting aggressively first. Because if A fired at B, C could then fire at A. The idea is that you can't shoot one of your opponents without making yourself vulnerable to the second opponent.

That is the idea of a party having a check over another one to stop it from doing what it shouldn't. But with our government, the "ability to fire the gun" is really a veto or a declaration of something unconstitutional that the other branch does. And the audience is the public who has further potential for restricting the government with a vote.

That's what Constitutional control is, an ability to shut the other branch down when it misbehaves toward the other branches or the people. Merely defining what each branch is supposed to do isn't enough to stop the other branches from claiming their powers.

It's claimed: Congress says that the Judiciary is lawmaking with their judgments. Congress says that the Executive Branch is making laws through executive agreements. President is saying that the Judiciary is interfering with Presidential national security power by striking down Executive Actions as unconstitutional. Judiciary is uncomfortable with political interference on the court when the President and Congress votes in a political judge. The Executive Branch and Legislative Branches can argue over which branch is really the one that controls the armed forces.

topic 2

Even though the debate between the specific "Federalists vs. Anti-Federalists" ended by 1789, the disagreements between the members of the groups continued for years.

However, the Federalists and Anti-Federalists didn't disagree to the extent that their group names suggested or how history often paints them as complete opposites.

First, the Anti-Federalists were not against the very existence of the Federalists. The purpose of the Anti-Federalists wasn't to literally eliminate the Federalists.

Secondly, we aren't looking at two groups with polar opposite ideas. We are looking at two groups who shared a general principle but disagreed with how far to take it. The Federalists and the Anti-Federalists both wanted a stronger National government than the one that existed at the time set up by the Articles of Confederation. Both groups thought it was too weak. The main disagreement here lies in how strong to make it. The question was "where to draw the line" as to how strong the National government should be. The Federalists wanted to make it much stronger than the Anti-Federalists did

If you want to visualize this, consider this rather simplistic chart:

Below is how the Anti-Federalists viewed each group's preference for the power of the national government. They wanted a National government that had a reasonable amount of power and saw the Federalists preferring a government that was too strong.

No Strength 1780's government Reasonable Too Strong Tyranny

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| | Anti-Federalists Federalists

Below is how the Federalists viewed each group's preference for the power of the national government. They wanted a National government that had a reasonable amount of power and saw the Anti-Federalist preferring a government that was still too weak.

No strength 1780's government Reasonable Too Strong Tyranny

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| | Anti-Federalists Federalists

Their positions on these 3 issues were the main source of contention between the groups.

Strong National Government vs. Power of State/Local Governments.

Frequency of elections and amount of terms in office.

Citizen Rights and Government Powers: Express or Implied.

1. The Anti-Federalists favored a balance of State/local government over National government and was concerned that a National government that became too strong would not be that different from the Great Britain monarchy that we broke away from. The Federalists favored a stronger National government in order to avoid the problems that occurred during the period that the Articles of Confederation was in power.

2. The Anti-Federalists wanted a higher frequency of elections with shorter terms for those in power. They also wanted to reduce the amount of terms that people could serve so that we would get more rotation of people in office and not just the same people.

Term length means the amount of time that an elected official gets to stay in that position before re-election. For example: A President's term is generally four years. Term amount means how many terms that an elected official gets to serve before no longer being eligible for that role. For example: A President is generally limited to two full terms.

3. The Constitution has implied powers for government and implied rights for people but what ends up happening is that the implied powers tend to overpower the implied rights. Sometimes the implied powers even overpower the express rights.

An implied power is one that is not enumerated or specifically expressed in the Constitution. We will study that closer when we discuss the "necessary and proper" clause in Article 1 giving power to Congress. An implied right is a similar concept but pertains to a right of the people that is not enumerated or specifically expressed in the Constitution. We will study that closer when we talk about the 9^th and 14^th Amendments.

The Federalists were in favor of implied powers for the government which the Anti-Federalists were concerned about. The Anti-Federalists were in favor of express rights so that the government could not ignore them. The Federalists were not so much against express rights as concerned about the implications of writing everything down.

Despite the fact that the Antifederalists have a name that suggests they came second; their positions were actually printed first. The Federalist Papers were initially planned to be a group of 20 essays in response to the Antifederalist challenges to the Constitution.

These challenges, in essay form, could be found in New York newspapers after the Constitution was signed in Philadelphia in September of 1787. The critical response to the Constitution by the Antifederalists created the perceived need for James Madison, Alexander Hamilton, and John Jay to write the Federalist Paper essays.

That is because the main goal of the Federalists was to convince New York State to ratify the Constitution. Therefore, they wrote the Federalists Papers to counter the criticisms of the Constitution that the Anti-Federalists Papers presented to New York and other states.

It is a common misconception that the Anti-Federalists were putting forth an organized effort before or even during the Convention. They were loosely aligned, and their work was uncoordinated. In a way, the method that they worked on is similar to the political views of federalism they espoused! It was decentralized with no coordinated effort telling them what to say and when to say it. They did their own thing.

Keep in mind that the Federalist Papers were not originally presented in the organized way they are now. The passage of time allowed for compilation of the works through publication and internet arrangement. But they were not originally released together in one book like they are now. Rather, they were a series of articles. They were coordinated by Madison, Hamilton, and Jay, but not released together at once as the combined Federalist Papers. They were just part of an ongoing dialogue with the country and debate with Anti-Federalists through the medium of newspapers and other journals.

The degree of ease now in finding the Federalist Papers joined together makes it often daunting to find the more scattered Anti-Federalist papers. But it is very worth it to track these documents down, or just synopses of them, to see how they influenced the Constitution and American political thought in their own way. The Federalists may have "won" as history remembers it, due to the Constitution being ratified. But the part of the Constitution that people think of first and fondly is the Bill of Rights that the Anti-Federalists set as a condition for their states to ratify the Constitution. While our country became more nationalist in its political structure, federalism still exists.

The Anti-Federalists pushed the Federalists to work harder to make convincing arguments by philosophically and energetically challenging them. If not for Anti-Federalist critique, the Federalist papers would not be as clear as to what the framers of the Constitution actually wanted. Therefore, we know more about what the Constitution was meant to do, as a result of this debate. Plus, the Constitution could have actually changed as a result of this debate not happening. Great intellectual rivals test each other.

One of the questions that has long haunted the legacy of the Federalist Papers has been whether or not it was written earnestly to express actual principles of political philosophy that guided the Constitution? If it was, then it could be used to help interpret the Constitution by the Judiciary or other branches. However, there are those who feel that the Federalist Papers were just written as a means to an end to guarantee ratification of the Constitution. This is similar to the allegation we will cover later in the semester about how Justice Marshall was accused of political opportunism in Marbury v. Madison.

One can understand why the Federalist Papers are seen primarily as political propaganda just to achieve ratification since the essays were written during that struggle. But just because there was a political position advocated in a persuasive manner does not necessarily mean that it was just written to persuade and not to inform. The writers of the Federalist Papers seemed to believe in their arguments and believed that the Constitution reflected the philosophies that they were espousing here. Yes, they wanted the Constitution to be ratified, and the Federalist Papers explained WHY that was the case.

We won't be going into all of the Federalist Papers. All four of the ones we will study are believed to have been written by James Madison who has been called "The Father of the Constitution" for having such a large role in writing it and debating in favor of it.

However, much like the Anti-Federalists forced the Federalist hand in explaining Constitutional philosophy in these papers, the Anti-Federalists also forced Madison to make some compromises: many of which he grew to prefer over the years. We'll get into that later in the semester when we discuss the 9^th and 10^th Amendments and their role in the Bill of Rights, as well as the Bill of Rights role in the overall Constitution itself.

Check List for your Essay Before you submit this essay to Brightspace, make sure that you have read the entire "Avoiding Plagiarism" and "Essay Structure" guides in the Session 18 notes, the "General Exam Advice" in Session 17. Following my guides will ensure a high score. Here is a quick check list to make sure that you met the most important objectives: In order to receive a high score, you need to: 1. Provide your thesis position statement in the first paragraph. It should clearly provide your opinion to directly answer each part of the question. 2. Immediately after that, provide an argumentative forecasting statement that provides 2-3 reasons for each thesis position statement. That argumentative forecasting statement should also be in the first paragraph. 3. Devote each body paragraph to one of the reasons you hold your thesis position. Fully develop each reason into a fully developed argument. A fully developed argument in a 3-page essay needs at least 5 sentences of your own points before being supported by evidence (course or research). 4. Start each body paragraph with a topic sentence that initially states your argument contained within that body paragraph. 5. Make sure that you do not have more course material or research than an opinion of your own in support of your arguments. This essay is not meant to be a literature review or a summary of course content. 6. Provide proper citation within the essay itself. o You should provide citation (using parentheses, footnotes, or endnotes) after every sentence of your essay that uses information from a source whether you are using quotes or not. If you are citing me, you can just say "(Reitzfeld, Session #)" or something similar. 7. Provide a Reference/Works Cited page at the end of the essay that has information for all of the sources that you use. If you are citing my notes, you can just use my name, the name of the course, and session number/date.

Choose a problem facing the United States today. Do you prefer to use the main views of the Federalists or the Anti-Federalists to solve that problem? If you favor a balance between the views of each group, make it clear which specific views you prefer. Do not just summarize the views of each group: show why you favor them to solve the problem.

i need a 3 page paragraph please use the good citation

Please use these 2 topics reading that I uploaded witht the question.,