Federalist No. 51
October 30, 2015
The Federalist Papers, written from 1787-1788, were a set of 85 articles published in The Independent Journal and The New York Packet. The purpose of these papers was to convince the revolutionaries to sign the Constitution, which would then put in place a more powerful government than what was there under the Articles of Confederation. The Papers were written by James Madison, John Jay, and Alexander, all under the same pseudonym, Publius. In February of 1788, James Madison published Federalist No. 51. Federalist 51 is one of the most prominent of the articles, because the Anti-Federalists had such a fear of an all-powerful government and this paper detailed how the Constitution would prevent that. Madison stated in Federalist 51 that, in order to prevent one branch of government from trumping the others, “… giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” (Madison 1788). In other words, if the three branches have different functions, it is “forcing them to share power” (Lowi, Ginsberg, Shepsle, Ansolabehere; 2013). With that comes checks and balances, in order to keep each branch from becoming too powerful. Moreover, Madison states that, because the legislative branch is the most prevalent, what with it being so closely related to the people, it also must be split into two chambers. Those two chambers are given their own functions, which is meant to help prevent Congress from becoming too powerful. The system is built with pre-existing flaws that become more evident as time passes, but overall, Madison was correct in his ideas about separation of powers and checks and balances.
Many people will argue that in today’s society, nothing ever gets done in our government because of checks and balances. In some ways, they would be correct. A lot of the time, bills don’t become laws because they get scratched in committee, before they ever even make it to the chamber floor. Occasionally, a law is ruled unconstitutional by the Supreme Court, even though the law was meant to help the progression of the nation. For instance, in 1875, with the first Civil Rights Act, the Civil Rights Cases declared that the federal government could not prohibit discriminatory acts made by private organizations or people under the Equal Protection Clause of the Fourteenth Amendment. Despite the fact that Congress passed the law to protect US citizens, the Supreme Court shut it down because the Chief Justice saw it as unconstitutional. However, there are ways around the restraints of checks and balances without ignoring the Constitution. Executive orders are one way to get things done quickly. While they aren’t an enumerated power given to the President, they are an implied power. They hold the same amount of weight as legislation but do not require Congress’s support. Moreover, they are only held in place for as long as the President is in office. One example where an executive order defied Congress in order to help the nation is with Executive Order #10925, with affirmative action. President John F. Kennedy saw an opportunity to make change in the nation, because there were laws being put out to protect people from discrimination but they weren’t being enforced. With the executive order, he made it so that people of different races were given equal opportunities in employment and education. While there was some controversy with his decision, it allowed quicker action than passing a law. Then, it was easier for Congress to pass the Civil Rights Act of 1964 and create the Equal Employment Opportunities Commission. Another example would be Executive Order #10730, where Lyndon B. Johnson ordered the National Guard to protect the black students who were enrolled in Little Rock High School. Even though segregation was ruled unconstitutional, the mayor of Arkansas wanted to prevent the students from desegregating. The President then had the power to enforce that court case, despite any legislation or legal-standing that the state had. Moreover, even with checks and balances, court cases allow things to get done in this country. While they do take at least a few years, it’s easier to make a decision than if it were a bill passing through Congress, because of all the checks and balances within the legislative branch itself. Moreover, the Supreme Court is given the power in the Constitution to determine if laws are constitutional or not, therefore preventing the legislative branch from passing bills that are unjust. An obvious example would be Brown v. Board of Education, in which the courts undermined state laws in order to desegregate schools because “separate but equal” was not constitutional. In addition, there was Obergefell v. Hodges, a 2015 court case that legalized gay marriage and gave all of the same marital rights as heterosexual couples. Several states still had bans in place against homosexual marriages, so this court case deemed those laws unconstitutional, thus “checking” the legislative branch. While most of the time, nothing gets done in our government, there are several ways around that, which is how our society functions.
Another reason why checks and balances work in our government is because it prevents the presidency from becoming too much like a monarch, like a king. After the revolution, the last thing that anyone wanted was another King of Britain, which is why the Articles of Confederation didn’t create any executive branch at all. However, it became obvious after Shay’s Rebellion that there was a need for a branch to execute laws passed by Congress. Many Anti-Federalists were afraid of having a President, though, because they feared another tyrannical leader. The way that the Constitution prepared for this was through checks on the president. While the executive branch has grown immensely since the Second Continental Congress, through agencies and departments, it hasn’t overstepped its boundaries without backlash from Congress or the judicial branch. For example, if the President vetoes a bill, it can be overridden by two-thirds of Congress. While this is rare, it is possible. Additionally, the Supreme Court can declare executive actions unconstitutional such as when a federal judge declared that President Obama’s executive actions on immigration were accused of being in violation of the Constitution. Lastly, the President can be impeached, if he is believed to have committed a crime against his country. The impeachment is done by Congress, while the trial is overseen by the Chief Justice. While there has never been a President who was removed from office, Andrew Johnson and Bill Clinton were both impeached. Richard Nixon resigned before he could be impeached. This power is given to Congress because both chambers have to agree that the President is fit to go to trial, which prevents the President from getting away with crimes but also from Congress throwing the executive head under the bus because they don’t agree with his/her policies. On one hand, the framers never intended for the presidential office to grow so tremendously, but it seems necessary as our country and our government expands. Each branch has acquired new responsibilities and, with that, new checks and balances.
As our government further develops, the less that citizen involvement is possible. Government actions become less personable and the details become too miniscule to keep track of. With that being said, checks and balances support democracy by providing ways for citizens to influence the different branches of government. For instance, if citizens believe that the President isn’t doing their job like he/she should, then they can vote in a new Congress that will be able to check the executive branch. On the other hand, if citizens don’t agree with Congress, they can vote in a President of the opposite party in order to check the legislative branch. This is why, more often than not, the majority party in Congress is the opposite party of the President. Even today, that is the case. Furthermore, with the way our government is set up, citizens are able to contact their representatives in Congress or take their case to the court system if they believe that a law or a government action is unjust. An example of this would be Roe v. Wade, where Norma McCorvey claimed that she had a right under the Constitution to have a safe abortion. In Texas, where the case originated, abortion was only legal if the mother’s life was endangered. McCorvey argued that, even though her life was not endangered, she could not travel out of state for an abortion and she did not plan on having the child. Although she ended up having the child due to the length of the trial, abortion was legalized under certain circumstances in the end.
Checks and balances were incorporated into the Constitution because the Anti-Federalists were still afraid of the government becoming too powerful. However, the Federalists knew that the Articles of Confederation didn’t work because it created a government that wasn’t powerful enough. They needed a balance between a monarchy or dictatorship and no government at all – democracy. Within democracy, the framers needed a way to reassure the Anti-Federalists that no branch or person would become too dominant – separation of powers and checks and balances. The Anti-Federalists believed that the Constitution gave too many responsibilities to the federal government, which would undermine the state and local governments. For example, in the Anti-Federalist Paper No. 51, they said that putting elections in the hands of Congress would give them the power to “perpetuate themselves when they shall find it safe and convenient…” (Aristocrotis, 1788). They wanted the federal government to be comprised of trustworthy candidates from the states, so that there would be no need for procedures or precautions like judicial review. However, as Madison says in Federalist Paper No. 51, “If men were angels, there would be no need for government” (Madison 1788). Even if the federal government was limited and all of the power went to the state and local governments, there would be a need for safeguards against corrupt delegates. There have been several cases where a state governor or representative misused their powers in office. For example, just a few years ago, Bob McDonnell, Virginia’s governor, used his status before he was even officially in office in order to receive money and gifts in exchange for political favors. Corruption can happen on any level, and the size of the federal government required boundaries to prevent that as much as possible. So even though the Anti-Federalists didn’t want checks and balances to begin with, that’s what was thought best for the country.
Aristocrotis. (1788). The government of nature delineated; or An exact picture of the new federal
Constitution. Carlisle [Pa.]: Printed by Kline and Reynolds.
Hamilton, A., Madison, J., Jay, J., & Ball, T. (2003). The Federalist. Cambridge, U.K.:
Cambridge University Press.
Lowi, T., Ginsberg, B., Shepsle, K., & Ansolabehere, S. (2014). American Government: Power
and Purpose (13th Ed.). New York: Norton.