Federalist No. 51, Part IV: Lessons & Limitations

            Studying the American Founders has for a long time been a remarkably relevant endeavor. Few countries actively maintain the fervent, at-times visceral connection to their origins the United States of America seems to revel in, and understanding exactly who created the nation that has stood at the pinnacle of global power for the last seventy years is a course of study that capably repays the effort put into it. The words and intentions of George Washington, Thomas Jefferson, and James Madison are referred to constantly in the halls of power and punditry alike, and comparisons are ever being drawn between the United States as it exists today and the nation that those hallowed few helped create. Being able to take part in this discussion can be incredibly enriching – the Founders were, after all, an exceedingly intelligent and insightful group of people. That said, it is also incumbent upon every student of the American Founding, amateur or otherwise, to try to cultivate a nuanced understanding of the subject at hand. The Founders said a great many things from which a 21^st century observer can draw inspiration – about the purpose of government, the logic behind certain power structures, and the importance of literacy, reason, and vigilance in a republic – but they were far less capable of accurately foreseeing the future than many of their admirers would care to admit. They were human beings – if exceptionally gifted examples of the species – and there were accordingly certain eventualities they were simply incapable of accounting for.  

            James Madison is no different in this regard. His Federalist No. 51 remains, almost two hundred thirty years after it was written, a tremendously cogent explanation of checks and balances republicanism and the practical limitations inherent in creating a large, complex government. In addition, some of the contrasts between certain elements of the federal government he was attempting to promote and their modern iterations – the way Madison viewed the Presidency is somewhat at odds with the office as it exists today – provide fascinating insight into the late 18^th century conception of the United States of America. That being said, other of the arguments Madison put forward in No. 51 cannot help but seem rather naïve by 21^st century standards. The country that Madison and his cohorts at the Philadelphia Convention attempted to draft a framework of government for was small (territorially, and in terms of population), rural, and decentralized, and it was inevitable that as it expanded and matured its needs and the pressures placed on its public institutions would change. The Framers were eminently aware of this, and did as best they could to create a set of flexible structures into which subsequent generation of Americans could manifest their particular intentions and desires.

Even so, there were certain social and political transformations they were ill-equipped to anticipate, and as a result some quantity of their insight into the needs of the nation they were attempting to govern has since been disproven or disqualified. Federalist No. 51 preserves such a misapprehension, no less worthy of examination for its obvious fallacy. Indeed, understanding how and why someone as preternaturally intelligent as James Madison could have failed to predict the course of American political history is every bit as valuable as imbibing the wisdom he so often dispensed. Because the Founders were such an exceptional group of thinkers, and because their words have been quoted and referred to so frequently by generations of Americans, it can be all too easy to think of them as infallible. The phrase “what the Founders intended” comes up so often in the public discourse of the United States that an outside observer can be forgiven for concluding that these semi-mythic originators must have been some species of demi-god who created a perfect system of government that was subsequently handed it down to their flawed, contentious, and oh-so-mortal offspring. This is, of course, not the case. The Founders made mistakes, and quarrelled with each other, and they were partisan, and petty, and short-sighted. Confined by the intellectual context of the 18^th century, they failed to predict a great deal about what the United States would become. Bearing this in mind is exceedingly important when studying the circumstances of and participants in the American Founding, lest a modern reader of Jefferson or Hamilton fail to scrutinize what they are being told and come away with a understanding that is particularly toxic to the overall public good. 

        

            Bearing that in mind, much of what Madison had to say in Federalist No. 51 does continue to be of great potential use. Though it ought to be a durable maxim that not all questions of a political which arise in the United States ought to be viewed through the lens of the 18^th century, it can occasionally be useful to compare what has become tradition and custom in American government to what the creators of that government originally intended. Take, for instance, the balance of power as it exists today (May 23^rd, 2016) between the Congress of the United States and the President thereof. Both of these entities possess foreign and domestic policy agendas and both wield significant power in each of these arenas. Occasionally (more often in some eras than in others), a disagreement or difference of priorities leads them into conflict with one another, and thanks to the means they each have at their disposal the result is quite often a stalemate. In spite of this fact, the President is generally considered the more powerful of the two while the nominal leader of the legislative branch (the Speaker of the House of Representatives) remains a comparatively obscure figure. Without in any way referring to the way things “should be,” or making any statement as to who intended what as if it was the last word on the subject, it perhaps bears reflection that one of the fathers of the Constitution, James Madison, nurtured an altogether different conception as to the nature of the abovementioned relationship.

            “In a republican Government,” Madison wrote in the sixth paragraph of Federalist No. 51, “The Legislative authority necessarily predominates.” The state governments that then existed – excepting Massachusetts and New York – obeyed this axiom by delegating far more responsibility to their legislatures than their executives. Madison perceived this balance of authority as being distinctly flawed – legislatures, in his opinion, were as capable of corruption and excess as any governor or president – and the federal constitution he and his colleagues in Philadelphia designed in the summer of 1787 accordingly mandated a far more equitable distribution of power. That being said, and recalling the passage quoted above, the 18^th century conception of a republic was prejudiced in favor of a strong legislature. If the United States of America was to operate within a truly republican framework, as most Americans in the post-independence era demanded it should, it followed that the same would then be true of the federal Congress. Madison was evidently of this opinion, as No. 51 indicates, and argued in favor of several specific measures which he hoped would diminish the strength of the federal legislature and prevent it from dominating the national government.

            Congress could be sufficiently weakened vis-à-vis the executive branch of the federal government, Madison asserted, by first dividing the former into two different bodies. Like the upper and lower houses of many existing state legislatures, the House of Representatives and the Senate would each be required to pass judgement on bills proposed from within their own membership before they could become the law of the land. Unlike these same state legislatures, however, the House and the Senate would be chosen by and conform to, “Different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on society, will admit.” Whereas the upper houses in most states were chosen either on the same basis as the lower house (by popular election) or by the lower house itself, the membership of the Senate was to be determined by the legislatures of the states therein represented. As a result, the Senate would be more likely to embody the interests of the individual state governments while the House would speak for the general population of the United States. This, Madison argued, would help to ensure that the upper and lower houses of Congress would nurture different sets of priorities and place them frequently at odds with one another, thus preventing the legislative branch of the national government from possessing the requisite stability or solidarity to overshadow either the executive or the judiciary.

            Fearing that dividing the power of Congress would not be enough to blunt its ability to dominate the federal government, Madison further explained in No. 51, the Framers of the proposed constitution also determined to allow the presidency the use of a veto on all legislative acts and established certain structural connections between the executive branch and the Senate. “As the weight of the Legislative authority requires that it should be divided,” he wrote of the former provision, “The weakness of the Executive may require, on the other hand, that it should be fortified.” Weak state governors had been incapable in the 1780s of stymieing legislative efforts to forgive debts and print large quantities of paper money that quickly lost its value. The American economy had accordingly suffered through a post-independence downturn, and Madison seemed particularly keen to prevent this kind of runaway populism from finding its way onto the national political stage. Armed with a veto, a President could act to prevent the passage of laws they deemed harmful to those not represented by a majority in Congress – notably including individuals who held public and private debts and nurtured a reasonable expectation of being repaid.

Tying the upper house of Congress to the executive branch – making the Senate responsible for confirming executive appointments – was also intended by the Framers to create a more balanced distribution of power within the proposed national government. So long as the Senate had some stake in the day-to-day function of the federal executive, Madison explained, its members would be less inclined to intrude upon the prerogatives of the President and his chosen ministers. Having exercised their discretion in the selection of executive department heads, it was hoped that Senators would rise to their defence in the event that their counterparts in the House attempted to disempower or disregard the same. After all, the power to approve who directed the nation’s finances or its diplomatic priorities represented a significant responsibility, and one which the Senate would be loath to see invalidated once put to use. This would necessarily introduce a further cause for conflict between the two branches of Congress, make unity of purpose between them less likely, and allow the executive to fulfill its responsibilities unimpeded by unwarranted legislative oversight.  

In light of these various provisions and the manner by which Madison accounted for them in 1788, several facts are worth noting about the way the government of the United States functions in the present era. Following the ratification of the 17^th Amendment in 1913, United States Senators are no longer selected by the legislatures of the states they represent in Congress. Instead, they are popularly elected on a statewide basis with mid-term vacancies filled by the appropriate state governor. While this change was intended at the time of its proposal and implementation to address the perceived corruption and inefficiency inherent in allowing state legislatures to select Senators – state assemblies were understood as being easier for special interests to sway than Congress and prone to deadlock during Senate elections – the result has necessarily been an alteration of the balance of power in the federal government. Whereas the Senate was originally intended to act as a counter to the House of Representatives, in part by giving the state governments a voice in the affairs of the federal government, this has arguably ceased to be the case.

Though the upper and lower houses of Congress still possess different powers and responsibilities, they are no longer, as Madison described in No. 51, “As little connected with each other as the nature of their common functions […] will admit.” Released from any connection to the fluctuations of state politics by the implementation of popular elections, the Senate has become wholly a part of the federal government. Rather than check the power or the prerogatives of the House, it has become far more likely to ally with it in pursuing a shared legislative agenda. This often comes at the behest of the executive branch, whose connection to the Senate via its power of appointment has increasingly become cause for conflict. Meanwhile the states, held up by Madison in No. 51 as another check on the power of the national government, have lost the structural mechanism originally intended to allow them input into federal decision making and have been forced to seek alternative means of exerting their influence. Whether this altered status quo had been harmful or beneficial to the overall health of American republicanism is a matter of debate.

As Madison and his collaborators envisioned it, explicitly tying the composition of the Senate to the state governments provided the latter with an ingrained safeguard against an abuse of federal power and ensured that Congress would have a harder time combining against the executive branch. Since the passage of the 17^th Amendment, however, the Senate and the House have been increasingly united in their overall priorities – both tend to see themselves as part of national legislature concerned with national issues – and since the 1930s both have served to further empower the federal government at the behest of the states. There is no sense in denying that changes to the Constitution like the 17^th Amendment came as the result of challenges or flaws the existing federal charter appeared incapable of surmounting. As the needs of the American people have changed, Madison would doubtless have agreed, it is altogether appropriate that the nature of their government has changed as well. That being said, examining the reasoning deployed in Federalist No. 51 for the pre-1913 federal power dynamic may reasonably lead one to question whether or not something has been lost by altering the formula the Framers originally devised. The balance that Madison championed in 1788 was a delicate one, and though it eventually gave way to a wave of populist reform – at a time when populist reform was notably in fashion – its utility may yet bear further analysis.

Also worth noting are the ways Madison’s cherished executive veto has been utilized since the ratification of the Constitution. Or perhaps “cherished” is too strong a word. As he made clear in No. 51, an executive veto was not a fool-proof proposition. At times, “It might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused.” The fact that Madison still endorsed the existence of an executive veto in spite of his ambivalent feelings towards it would seem to indicate, however, that he and his cohorts in Philadelphia were convinced that the presidency would have been too vulnerable without one. A perusal of American presidential statistics would seem to corroborate this sense of delicacy; presidents in the 18^th century and throughout most of the 19^th century tended to be very judicious with their veto power. Between George Washington’s election in 1789 and the death of Abraham Lincoln in 1865, Franklin Pierce (in office between 1853 and 1857) was the most generous at nine, Madison himself (1809-1817) made use of five, and several presidents, including John Adams (1797-1801), Thomas Jefferson (1801-1809) and John Quincy Adams (1825-1829) didn’t negate a single piece of federal legislation. As this era roughly corresponds to a period of legislative dominance in American federal politics, Madison’s characterization in Federalist No. 51 would seem to have been born out. The presidency was weak, Congress was strong, and the executive veto acted as an occasional counterbalance.   

By way of comparison, Grover Cleveland (1885-1889 and 1893-1897) vetoed three hundred forty-six pieces of federal legislation, while Harry S. Truman (1945-1953), delivered one hundred eighty. Indeed, since the 1890s presidents have regularly racked up double digit veto numbers, with Warren Harding (1921-1923) coming in at the bottom of the ranking with a slim five. Paradoxically, this increased usage of the executive veto, intended to allow weak presidents to stave off legislative dominance, seems to parallel the rising power of the executive branch witnessed since the end of the Civil War (1861-1864). Rather than act as a tool to balance the scales of federal power, the veto has increasingly come to represent the at-times overbearing authority modern American presidents are capable of bringing to bear upon the affairs of the nation. In this sense, Franklin Roosevelt’s record seems particularly instructive. He served in office longer than any president before or since, greatly enlarged the scope of federal authority, and suffered having only nine of his three hundred seventy-two vetoes overridden by Congress. In other words, he successfully negated three hundred sixty-three bills passed by the Senate and the House – together a theoretically co-equal branch of government – between 1933 and 1945. To the likes of Madison, Jefferson, and Washington this would likely have appeared an unconscionable abuse of a constitutional power intended to prevent rather than facilitate the dominance of any one branch of the federal government. Obviously, a great deal has changed since the 1780s. Americans have come to expect different things of their government as their social and cultural priorities have shifted. That being said, reading Madison’s measured explanation of the executive veto in Federalist No. 51 calls into sharp relief – for better or worse – the difference between what the Government of the United States was designed to do and what it is now expected to do.