1. GOVT 2301 Federalist #51 and the Separation of Powers

2. Last week we looked at the first of several principles embedded in the U.S. Constitution. As we know, republicanism is representative democracy. The principle is meant to ensure the stability of the governing system despite its basis on the people.

3. In this set of slides we look at a second principle within the Constitution, the separated powers.

4. The term refers to the separation of the three functions of government into three separate institutions.The legislative, executive and judicial

5. We will also look at the checks and balances, which is the method maintains the separated powers.

6. Remember that concentrated power leads to tyranny. If we can keep governmental powers separated, we are free from tyranny. But as a consequence we have to endure inefficiency in governing.

7. We will read through Federalist #51, which explains the factors underlying both separation and checks and balances.

8. For past blog posts on these subjects, click on the following: Separated Powers.Checks and Balances.Appointments.

9. A little history (a reminder) might help.

10. Balanced GovernmentsAs we’ve seen from previous lectures, over the course of Anglo-American history, a degree of balance has emerged between governing institutions.

11. Balanced governments existed in ancient Rome as well as Britain

12. The Roman Republic contained powers clearly divided into different institutions. Recall again that the empire contained consolidated powers.

13. One of the ways the British Constitution divides power is among the different classes in society. Each is connected to a separate institution.

14. Monarchy – The Royal FamilyAristocracy – The House of LordsCommoners – The House of Commons

15. Enter the Enlightenment

16. Baron De Montesquieu was a proponent of a governing system separated according to the functions of government.

17. The administrative powers were the executive, the legislative, and the judicial. These should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two, either singly or in combination. – The Spirit of the Laws.

18. His writings were as influential as any other author in colonial America.Read here for background on separated powers from findlaw.com. (and of course Wikipedia)

19. As a result: In the American system a balanced government means that the three functions of government are vested in three separate institutions, and the balance is maintained by giving each the power to resist the encroachment of the other two.

20. The Trick: How do you do this?

21. How are power separated and how are they kept separate? That is the subject of Federalist #51, written again by James Madison.

22. Federalist #51Anti – Federalist #51 This subject is also discussed in Feds 47 – 50.

23. According to Madison the first thing is to ensure first that each institution “has a will of its own.”This means they are autonomous, or independent.

24. One cannot control the others.

25. Each is written is clearly distinct articles in the Constitution.

26. Each article begins with a vesting clause which states that each power is “vested” in a distinct institution.

27. The LegislatureArticle One of the U.S. ConstitutionArticle Three of the Texas Constitution

28. Section 1.All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

29. Basic Facts: - It is the democratic branch, it is closely tied into the electorate.- It has the power of the purse.- It makes laws- It represents constituents- It oversees the implementation of laws- It checks the executive and judicial branches

30. The ExecutiveArticle Two of the U.S. ConstitutionArticle Four of the Texas Constitution

31. Section 1.The executive Power shall be vested in a President of the United States of America.

32. Basic Facts:- It is the autocratic branch, on the national level it is headed by a single person (to provide “energy” in the executive), plural on the state level. - It has an elected component, and a professional component: The bureaucracy.- It has the power of the sword- It implements the laws- checks the legislative and judicial powers.- the most feared branch – military king?

33. The JudiciaryArticle Three of the U.S. ConstitutionArticle Five of the Texas Constitution

34. Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

35. Basic Facts: - The oligarchic branch- reconciles disputes in society- the disputes can be criminal and civil- trials and appeals- interprets statutory and constitutional law- checks the executive and legislative branches with judicial review

36. The United States Constitution does not clearly state that it is a system of separated powers.The Texas Constitution does.

37. THE TEXAS CONSTITUTIONARTICLE 2. THE POWERS OF GOVERNMENTSec. 1.  DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

38. From Fed 51: Each institution “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.”

39. One cannot control the appointments of the others.This means that each must have its own unique way of getting elected.

40. “. . . all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.”

41. Each of the four institutions of government is (or was initially) selected to office by one of four means.

42. House – Election by the PeopleSenate – Selection by State LegislaturesPresident – Electoral CollegeFederal Courts – Presidential Appointment followed by Senatorial Confirmation.

43. Each institution is responsible to a different constituency. If they were all responsible to a single constituency that entity could be the force that drives these powers together, which can lead to tyranny.

44. Note: The 17th Amendment altered this relationship by making Senators subject to the direct preferences of the people of the states, as are House Representatives. The states no longer had a direct connection with the national government.

45. Also note: In Texas all of these positions are elected by the people. We will reflect on this later, but consider for now whether this allows for the powers to become concentrated.

46. Texas’ design reflects that greater faith the drafters of the Texas Constitution had with the decisions of the electorate. It embodies an expansion of democracy that occurred as the country moved westward.

47. That’s the positive spin. The negative spin is that it allowed the majority to continue tyrannizing the minority.

48. The different terms of office strengthen the separation.

49. House – 2 year termSenate – 6 year overlapping termsPresident – 4 year termsFederal Courts – service during good behavior. Generally referred to as lifetime tenure.

50. At no point can the electorate remove the entire government at once. It is immune from the direct influence of the electorate.