Federalist 47

The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. (Madison)

The purpose of the Constitution is to divide powers given to government

  • This division is the “essential precaution in favor of liberty”
  • Designed specifically 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.”
    • This prevents the adulation of form over function – the Constitution derives its power from the people, not from itself.
    • Liberty is so much the desired end, that even human nature itself is allowed to flourish is all its positive and negative aspects.
    • Therefore, recognition of truth of human nature is required as well as the influence of faction(s).
  • To prevent “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”

“In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.”

  • Montesquieu – “this great political critic appears to have viewed the Constitution of England as the standard,… as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system.”
    • The Constitution mirrors the Constitution of England
      • the Legislative, Executive, and Judiciary departments are by no means totally separate and distinct from each other.
        • Executive forms an integral part of the Legislative authority
          • He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts.
          • All the members of the Judiciary are appointed by him,
          • Judiciary members can be removed by him on the address of the two Houses of Parliament
          • can choose to consult members of Judiciary, as one of his constitutional councils
        • Legislative Department
          • Senate
            • Forms/acts as another Constitutional Council to the Executive
            • is the sole depositary of Judicial power in cases of impeachment
            • is invested with the supreme appellate jurisdiction in all other cases
              • Appellate jurisdiction is the power of a court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right. Depending on the type of case and the decision below, appellate review primarily consists of: an entirely new hearing (a non trial de novo); a hearing where the appellate court gives deference to factual findings of the lower court; or review of particular legal rulings made by the lower court (an appeal on the record)*  See note at end of document.

As an addendum to these notes on Federalist 47, a brief understanding of Montesquieu and the Separation of Powers is available at LibertyFund.org.

* Note: To better understand the ability of the Senate to check the power of the Judiciary – specifically The Supreme Court I have included this information from WikiAnswers.com:

How Legislative Branch Checks the Supreme Court

  • Senate approves federal judges, including Supreme Court justices (Advise and Consent Clause)
  • Impeachment power (House)
  • Trial of impeachments (Senate)
  • Power to initiate constitutional amendments (to undo supreme court decisions)
  • Power to set courts inferior to the Supreme Court
  • Power to set jurisdiction of courts (they can tell a court that they can not hear a case on a certain topic, which includes changing the appellate jurisdiction of the Supreme Court)
  • Power to alter the size of the Supreme Court (if the size is drastically increased the Executive may select all the new justices and change the sway of power)

More Information

Congress can check the power of the Supreme Court through the process of Constitutional Amendment. While the Supreme Court can rule that a particular law is unconstitutional, it cannot rule that the Constitution itself is unconstitutional. If the Congress (and 3/4 of the state legislatures) approve a constitutional amendment, it becomes the supreme law of the land, and the Supreme Court cannot overrule the Constitution.

Here is a typical example of how the Congress overcomes the rulings of the Supreme Court:

The 18th amendment was passed by Congress and ratified by the states. That made it illegal to manufacture, sell, or transport alcohol. The SC had no choice but to rule in favor of any law that specified penalties for manufacturing, selling, or transport of alcohol. Many people over the years (1919-1933) went to jail for violating those laws, based upon their constitutionality in light of the 18th amendment.

In 1933, the Congress simply repealed the 18th amendment with the 21st amendment, and the states ratified that amendment. The SC since then has had to rule against any blanket law that prohibits the manufacture, sale, or transport of alcohol.

Several times, the SC has struck down laws that prohibit desecration of the American flag. Their rulings are always based upon the 1st amendment which protects individuals’ rights to express themselves, even when that expression is offensive to many, even most other citizens.

If Congress were to pass an amendment that prohibited desecration of the American flag, and it were to be ratified by the majority of the states, the SC would likely have to uphold any laws that provided penalties for said desecration.
Amending the Constitution is a difficult and time-consuming process. It was designed to be that way, so that people could not easily alter our form of government on a whim of the moment.

Read more.

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