Can one branch of government claim authoritative legitimacy over another branch of government?
Publius (James Madison) tackles this question in Federalist 51 by outlining how government is divided to avoid the scenario of one branch of government claiming absolute authority over another branch of government. Federalist 51 also extended Federalist 10, which spoke of factions. Here, Publius expands many aspects of his arguments in Federal 10, which focused on extended factions, and he goes back to that argument while also informing the reader on how the distinct powers of each branch prevent another branch from claiming authoritative legitimacy over another branch.
Publius firmly establishes at the beginning of the piece that to maintain a partition of government; it is important 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.”[1] Our Constitution does this in several ways, such as allowing an executive to veto legislation and appointing a lifetime position to the Supreme Court. Additionally, the Constitution lays out a series of steps for the election of the President and members of Congress. The President is elected every four years, while Representatives are elected at two-year intervals and Senators 6 six-year intervals, with The Senate, divided into thirds so that one-third of the Senators are up for election every two years. By making the Supreme Court a lifetime appointment, a justice is not continuously beholden to the President who appointed him. Finally, in order for the appointment to be final, the Senate must consent to it.
Publius continues his argument by noting that because of its specific requirements, the judicial branch’s selection of judges by the people would be impractical; therefore, we may not get the best-qualified judges if it were up to the voters. Since the appointment to the judiciary is permanent and would exceed the term of the executive branch appointing them, dependency on the executive branch is destroyed.
However, it is not only through staggered elections or permanent appointments that each branch would stay independent but also through the specific jobs they must perform, which are then checked by other branches. Here, Publius issues his famous quotes: “Ambition must be made to counteract ambition” and “If men were angels, no government would be necessary.” This means that each branch must check itself and be checked by the other branches because human nature is such that abuses would arise if no checks were in place. For example, the House originates legislation, and the Senate then carefully deliberates on each piece of legislation and then sends it back to the House or lets it die. Once all the differences are worked out, the legislation goes to the President, who either signs into law or vetoes. If the President vetoes the legislation, Congress has a certain number of days to override the veto. Finally, the people can oppose the legislation through the courts, which would review it and determine if it is constitutional or not. Now the court could strike down a law, which doesn’t necessarily mean that the executive is forced to listen to them because it is a separate branch. However, tradition has necessitated that the executive adheres to the judicial decision.[2] That being said, it does not mean that the Supreme Court is the final authority because Congress can go back and revise the law, pass it, and send it to the President again in a different format.
There is yet another avenue available to the people to check the national government: our compound republic, which is divided into two main governments (national and state), with one being divided even further. The state governments are also elected by the people and not appointed by the national government. Furthermore, within the states, there is a further division of government at the county and local levels, which have their own distinct functions. Each has a check on the other level and the national government. The state generally checks on our national government by using the court system or the compact provision of the Constitution. These are small but significant steps the Founders worked into our national government to slow down and control the potential abuse of government.
Publius touches on factions again, but I will not go into further discussion on this subject other than to highlight religion in America and why we do not have a state-sponsored religion. Here, Publius makes his firmest argument for factions in an expanded republic because of the many different religious sects in the United States – even in 1787. The national government’s authority is “derived from, and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or the minority, will be in little danger from the interested combinations of the majority.” Therefore, religious freedom prevails because of the expansion of the republic, the variety of religious sects, and the differences within those sects across the country. This litmus test can be applied to many other factions or specific interests a government would undertake. Because of the divisions of government, the divisions within each branch make it difficult for the majority to oppress the minority. This does not mean that it has not been attempted, but that different branches of government can tamp it down.
Publius ends the paper by noting, “Justice is the end of government. It is the end of civil society,” all means of obtaining it have been instilled in the Constitution as best as possible to ensure fairness for the people of the United States. He ended the paper with the example of Rhode Island being an independent country and a limited sphere, highlighting the ability of a majority to take over and oppress the minority. However, this is less likely to happen with the expanded sphere of the United States and its division of government under the newly created Constitution. The larger sphere and division of government are more practical in ensuring the liberties of its citizens.
[1] Hamilton, Alexander, John Jay, James Madison, George W Carey, and James Mcclellan. 2001. The Federalist: The Gideon Edition. Indianapolis: Liberty Fund. Pg 267
[2] “Executive Enforcement of Judicial Orders | Federal Judicial Center.” Fjc.gov, 2020, www.fjc.gov/history/administration/executive-enforcement-judicial-orders.
