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FReeper Book Club: The Debate over the Constitution, Federalist #47
A Publius/Billthedrill Essay | 9 September 2010 | Publius & Billthedrill

Posted on 09/09/2010 7:54:59 AM PDT by Publius

Madison Surveys the State Governments

Starting with the British government, the earnest professor of history looks at the state governments to find how their designs differ from the plan of the Convention and the proposed Constitution.

Federalist #47

Separation of Powers (Part 1 of 5)

James Madison, 1 February 1788

1 To the People of the State of New York:

***

2 Having reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government and the distribution of this mass of power among its constituent parts.

***

3 One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the Legislative, Executive and Judiciary departments ought to be separate and distinct.

4 In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.

5 The several departments of power are distributed and blended in such a manner as at once 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.

***

6 No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded.

7 The accumulation of all powers – legislative, executive and judiciary – in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

8 Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

9 I persuade myself, however, that it will be made apparent to every one that the charge cannot be supported and that the maxim on which it relies has been totally misconceived and misapplied.

10 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.

***

11 The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.

12 If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.

13 Let us endeavor, in the first place, to ascertain his meaning on this point.

***

14 The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry.

15 As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty, and to have delivered in the form of elementary truths the several characteristic principles of that particular system.

16 That we may be sure then not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.

***

17 On the slightest view of the British Constitution, we must perceive that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other.

18 The executive magistrate forms an integral part of the legislative authority.

19 He alone has the prerogative of making treaties with foreign sovereigns, which when made, have under certain limitations the force of legislative acts.

20 All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils.

21 One branch of the legislative department forms also a great constitutional council to the executive chief as, on another hand, it is the sole depositary of judicial power in cases of impeachment and is invested with the supreme appellate jurisdiction in all other cases.

22 The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.

***

23 From these facts by which Montesquieu was guided, it may clearly be inferred that in saying, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “If the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

24 His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this: that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.

25 This would have been the case in the Constitution examined by him if the King, who is the sole executive magistrate, had possessed also the complete legislative power or the supreme administration of justice, or if the entire legislative body had possessed the supreme judiciary or the supreme executive authority.

26 This, however, is not among the vices of that Constitution.

27 The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it.

28 The judges can exercise no executive prerogative, though they are shoots from the executive stock, nor any legislative function, though they may be advised with by the legislative councils.

29 The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort.

30 The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

***

31 The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.

32 “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”

33 Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”

34 Some of these reasons are more fully explained in other passages, but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

***

35 If we look into the constitutions of the several states, we find that, notwithstanding the [emphatic] and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.

36 New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.

37 Her constitution accordingly mixes these departments in several respects.

38 The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments.

39 The President, who is the head of the executive department, is the presiding member also of the Senate, and besides an equal vote in all cases, has a casting vote in case of a tie.

40 The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department.

41 Several of the officers of state are also appointed by the legislature.

42 And the members of the judiciary department are appointed by the executive department.

***

43 The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this fundamental article of liberty.

44 It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.”

45 This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the Convention.

46 It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.

47 In the very constitution to which it is prefixed, a partial mixture of powers has been admitted.

48 The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments.

49 The members of the judiciary department, again, are [appointed] by the executive department and removable by the same authority on the address of the two legislative branches.

50 Lastly, a number of the officers of government are annually appointed by the legislative department.

51 As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have, in this last point at least, violated the rule established by themselves.

***

52 I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution and even before the principle under examination had become an object of political attention.

***

53 The constitution of New York contains no declaration on this subject but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments.

54 It gives, nevertheless, to the executive magistrate a partial control over the legislative department, and, what is more, gives a like control to the judiciary department, and even blends the executive and judiciary departments in the exercise of this control.

55 In its council of appointment, members of the legislative are associated with the executive authority; in the appointment of officers, both executive and judiciary.

56 And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department.

***

57 The constitution of New Jersey has blended the different powers of government more than any of the preceding.

58 The governor, who is the executive magistrate, is appointed by the legislature, is chancellor and ordinary, or surrogate of the state, is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches.

59 The same legislative branch acts again as executive council of the governor and with him constitutes the Court of Appeals.

60 The members of the judiciary department are appointed by the legislative department and removable by one branch of it on the impeachment of the other.

***

61 According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates.

62 In conjunction with an executive council, he appoints the members of the judiciary department and forms a court of impeachment for trial of all officers, judiciary as well as executive.

63 The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature, and the executive power of pardoning in certain cases to be referred to the same department.

64 The members of the executive council are made ex-officio justices of peace throughout the state.

***

65 In Delaware, the chief executive magistrate is annually elected by the legislative department.

66 The speakers of the two legislative branches are vice presidents in the executive department.

67 The executive chief, with six others, appointed three by each of the legislative branches, constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges.

68 Throughout the states, it appears that the members of the legislature may at the same time be justices of the peace; in this state, the members of one branch of it are ex-officio justices of the peace, as are also the members of the executive council.

69 The principal officers of the executive department are appointed by the legislative, and one branch of the latter forms a court of impeachments.

70 All officers may be removed on address of the legislature.

***

71 Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other.

72 Her constitution, notwithstanding, makes the executive magistrate [appointed] by the legislative department, and the members of the judiciary by the executive department.

***

73 The language of Virginia is still more pointed on this subject.

74 Her constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.”

75 Yet we find not only this express exception with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are [appointed] by the legislature, that two members of the latter are triennially displaced at the pleasure of the legislature, and that all the principal offices, both executive and judiciary, are filled by the same department.

76 The executive prerogative of pardon, also, is in one case vested in the legislative department.

***

77 The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers at the same time to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.

***

78 In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.

79 It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs, and the appointment of officers in the executive department down to captains in the army and navy of the state.

***

80 In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature, and the executive prerogative of pardon to be finally exercised by the same authority.

81 Even justices of the peace are to be appointed by the legislature.

***

82 In citing these cases in which the legislative, executive and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several state governments.

83 I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.

84 It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers, and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.

85 What I have wished to evince is that the charge brought against the proposed Constitution of violating the sacred maxim of free government is warranted neither by the real meaning annexed to that maxim by its author nor by the sense in which it has hitherto been understood in America.

86 This interesting subject will be resumed in the ensuing paper.

Madison’s Critique

This is a straightforward piece in which Madison answers the critics who have stated that the powers of the three branches of government are too intermingled. His approach is twofold: that such arrangements are both sound in theory and in current practice in the real world.

First, the theory. Madison was, of all of the Founders, perhaps the one most influenced by Charles de Secondat, Baron de Montesquieu, who was the late Enlightenment’s leading political theorist. Madison was by no means the only one; both Federalists such as Hamilton and anti-Federalists such as Brutus, Cato and deWitt made reference to Montesquieu in papers already published at the time of this essay.

11 The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.

The work most commonly cited is Montesquieu's Spirit of the Laws, published in French in 1748 and in English in 1750. He was, in the opinion of the 19th Century British historian and politician Thomas Macaulay, the heir to Machiavelli in the field of political analysis, and indeed there are stylistic similarities between the Spirit of the Laws and such Machiavellian classics as the Discourses on Livy.

It was Montesquieu who classified the French government of his day into two classes of power, the sovereign and the administrative, and the latter he broke down into the now familiar legislative, executive and judicial branches that form the structure of American government. These, he stated, worked best when their functions were isolated. The critics of the proposed Constitution took that to mean that the more isolated, the better. Not so, says Madison.

23 From these facts by which Montesquieu was guided, it may clearly be inferred that in saying, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “If the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

Thus the two principles of American constitutional structure are both seen in Montesquieu: the principle of the separation of powers, and the principle of checks and balances, and it is clear to Madison that the latter will not be possible without modifying the former to include at least a partial crossover of power. This, he states, was observed by Montesquieu himself in his study of the paragon of constitutional government of the early 18th Century, that of Great Britain (15).

17 On the slightest view of the British Constitution, we must perceive that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other.

But they cannot be too intermingled. Madison quotes Montesquieu again in a statement that must resonate with modern critics of the tendency of the American Executive Branch to attempt to govern through bureaucratic fiat.

32 “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”

Then comes a quote which must resonate with modern critics of the American Supreme Court’s tendency toward judicial activism.

33 Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”

It is too much to claim that Madison foresaw any of these developments at the time, but the fact that he quotes Montesquieu on their dangers proves that he was aware of the possibility. How best to guard against it? By limited crossover within separated branches of government. It was no particular innovation, in fact, for instances of this compromise abounded within existing state governments.

35 If we look into the constitutions of the several states, we find that, notwithstanding the [emphatic] and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.

The balance of the piece is an enumeration of this, state by state. Madison cites the governments of New Hampshire (36), Massachusetts (43), New York (53), New Jersey (57), Pennsylvania (61), Delaware (65), Maryland (71), Virginia (73) – whose constitution was written by Thomas Jefferson, George Mason and significantly, by Madison himself – North Carolina (77), South Carolina (78) and Georgia (80). Rhode Island and Connecticut are passed over because they were “formed prior to the Revolution and even before the principle under examination had become an object of political attention.” (52)

Madison does not want this essay misconstrued as advocacy for any of the particular state constitutions (82). These, he says, were excellent first efforts, but “carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.” (83) The latter is a bit tongue in cheek – the modern reader might need to be reminded, but his contemporaries knew perfectly well that he was referring to himself. He will expand on that dry self-criticism in the next essay and be echoed by Jefferson in the succeeding essay, wherein it will become clear that the writing of the Virginia Constitution offered a vital contribution to that of the new federal one.

Discussion Topics

Are any of the plans of state government better than the Constitution? If so, how and why?


TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: federalistpapers; freeperbookclub
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1 posted on 09/09/2010 7:55:02 AM PDT by Publius
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To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...
Ping! The thread has been posted.

Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11

2 posted on 09/09/2010 7:56:44 AM PDT by Publius (The government only knows how to turn gold into lead.)
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To: Publius

IBTP, OK Bill, I’m reading it now


3 posted on 09/09/2010 7:56:47 AM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Publius

Good Morning! Is this an on-going discussion regarding the Federalist Papers?, bought the book and is a difficult read, this will be helpful.


4 posted on 09/09/2010 7:57:55 AM PDT by GoCards ("We eat therefore we hunt...")
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To: GoCards

Yes. Check Post #2 for links, or click on “FReeper Book Club” on the upper right of the News Forum page.


5 posted on 09/09/2010 7:59:15 AM PDT by Publius (The government only knows how to turn gold into lead.)
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To: Publius

Outstanding. Thank you. If you are keeper of the Ping list, please add me.


6 posted on 09/09/2010 8:01:19 AM PDT by GoCards ("We eat therefore we hunt...")
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To: Publius
"The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent? To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are. "

Abel Upshur Secretary of the Navy 1841-43

If I worked for a month I could not say it any better than that!

7 posted on 09/09/2010 8:06:26 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Publius
A BTT for the morning crowd. The further we get into this project the more it astounds me not that balance and compromise were constituents of the Constitutional structure - that much was obvious from the outset - but that the specific balances and compromises chosen have functioned as well as they have for so long. Nearly everyone involved on both sides of the debate appears to realize that the government must change, must accrete power, and the challenge becomes more one of forming that progress than preventing it altogether. That isn't surprising inasmuch as the very least the most conservative anti-Federalists expected was a major amendment of the Articles of Confederation.

It is not, therefore, the Constitution that is a "living document," it is the government it controls, and just as with cell growth, where the control mechanisms for growth are corrupted natural growth can become cancer. It isn't the happiest of metaphors but it'll do for now.

8 posted on 09/09/2010 9:47:20 AM PDT by Billthedrill
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To: Publius
Our Constitution was, and is a radical departure from the existing forms of foreign governments. However, it was not a radical departure from the American experience.

From 1607 onward, the distant British colonies were forced to organize themselves into largely self governing entities for the sake of defense against French and Indian depredations and for commerce. Left to govern themselves during the English Civil War in a near Lochean state of nature, colonial and municipal governments developed varying modes of legislative, executive and judicial departments.

Upon revolt from Britain the states were more than ready to formally adopt freedom loving and government limiting constitutions. As Madison outlines, their structures were remarkably similar.

Our Constitution was therefore not a flash in the pan, nor a passing whimsy. What Montesquieu theorized was already well underway across the Atlantic.

No, our Constitution was and is a uniquely AMERICAN form of government, developed over 180 years, rooted in Natural Law and suitable only for a virtuous people jealous to defend their God given rights.

9 posted on 09/09/2010 10:01:49 AM PDT by Jacquerie (God save these United States.)
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To: Jacquerie
...and suitable only for a virtuous people jealous to defend their God given rights.

Which we have done a very poor job of in my estimation.

10 posted on 09/09/2010 10:13:28 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Billthedrill
Interesting comment by you, and I like the anology.

But there is one thing about government cells that our standard cells do not have: government cells do not die. They survive and grow, and multiply. Government cells do not go through stages of life (infancy, adoescence, old age and termination), and they never are lean; they bloat with age.

Their life cycle is the citizens' fault. We should be weeding out the old growth by putting a sunset on every bureau and every office within that bureau. The same with every tax, tax raise, or regulation.

Our distancing ourselves from constitutional principles is this nation's biggest problem; and the reason is obvious: George Mason hit the nail on the head with this section of his "Virginia Declaration of Rights:"

XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles."

It is time for our citizens to recoginize the importance of that last clause.

11 posted on 09/09/2010 10:46:52 AM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Jacquerie
Left to govern themselves during the English Civil War in a near Lochean state of nature, colonial and municipal governments developed varying modes of legislative, executive and judicial departments.

Interesting observation. In his collection of short stories titled Mosses from an Old Manse, Nathaniel Hawthorne wrote a story titled "Endicott and the Red Cross" which takes place during this period of upheaval in Salem, Massachusetts.

12 posted on 09/09/2010 11:06:58 AM PDT by Publius (The government only knows how to turn gold into lead.)
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To: Loud Mime

http://www.house.gov/brady/sunset_overview.html

Primary sponsor: My congressman Kevin Brady.


13 posted on 09/09/2010 11:07:03 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Billthedrill

You’re right that it’s not a happy metaphor, but I haven’t seen it said better because it paints a most vivid picture.


14 posted on 09/09/2010 11:28:37 AM PDT by definitelynotaliberal
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To: Bigun

Every session of congress sees sunset and sunlight proposals, yet they never go anywhere but the round file.


15 posted on 09/09/2010 12:37:48 PM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime
Every session of congress sees sunset and sunlight proposals, yet they never go anywhere but the round file.

Yeah! I know! Why do you suppose that is?

16 posted on 09/09/2010 12:41:07 PM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun
While I stopped listening to Neal Boortz some time ago, he got one thing right. The NEA/government schools represent a threat greater than Islam. It will be tough to go back to a Constitutional republic as long as statists get to pollute the minds of the young.

“The best laws, though sanctioned by every citizen of the state, will be of no avail unless the young are trained by habit and education in the spirit of the constitution.” - Aristotle

Yeah, a poor job indeed.

17 posted on 09/09/2010 1:13:51 PM PDT by Jacquerie (God save these United States.)
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To: Publius
Thanks. I'll have to check it out. French foreign policy v. the English colonies in the 17th century was ruthless.

Have you read Frothingham’s 1872, “The Rise of the Republic of the United States?” Its available in pdf from Cornell U.

18 posted on 09/09/2010 1:17:14 PM PDT by Jacquerie (God save these United States.)
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To: Jacquerie

I’ll have to take a look at it. Thanks.


19 posted on 09/09/2010 1:29:22 PM PDT by Publius (The government only knows how to turn gold into lead.)
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To: Publius

Thanks.


20 posted on 09/09/2010 2:25:42 PM PDT by CPT Clay (Pick up your weapon and follow me.)
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To: Publius

I just finished Endicott. Thanks again.


21 posted on 09/09/2010 2:26:46 PM PDT by Jacquerie (We live in a Judicial Tyranny - Mark Levin)
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To: Bigun

Congress is not interested in efficiency.

Tell what I would do if I could: restrict congress to ONE two-month session each year. That would stop all this stupid legislation and curtail their political trials.


22 posted on 09/09/2010 3:44:01 PM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Publius; Loud Mime; GoCards; Bigun; Billthedrill; Jacquerie; definitelynotaliberal; CPT Clay
Are any of the plans of state government better than the Constitution? If so, how and why?

One area where the branches of our government are too intertwined is the Executive Branch appointing judges. I’m not sure if at the time the constitution was written there were any popularly elected judges but it is an innovation that would makes some sense.

To get appointed as a judge, the person has to agree to at least some extent to defer to the executive branch. Even our own favorite judge, Scalia, says that the Judicial Brach should defer to the other two branches. This has over time tended towards the executive branch getting more and more power through the power of regulation granted by the legislative branch. This quasi-unconstitutional delegation of legislative authority has been blessed by a USSC that naturally is made of people who defer to the executive branch.

Our founders were clear that not only did they want the powers of the branches to be separate but in order for them to be independent, they had to be separately elected.

I’m not sure if any of the state governments at the time had elected judges but it is one area where the judiciary branch could be made more independent of the others. If the judiciary branch had two of nine members chosen every two years (and the chief justice appointed by the Executive branch), they would provide a nice check on both of the other branches. When was the last time we heard about the meaning of the ninth amendment being discussed in a confirmation hearing? Never, that I can recall. Instead we hear about judges only calling "balls and strikes".

Recently this very issue has come up over gay marriage in Iowa. link When former USSC justice O’Connor (appointed by Reagan) says judges should be independent, the first question is, independent of who? Well the answer is obvious, i.e. the people. I think most people would agree that they should be independent. The second question is, who should they be dependent on? There is no good answer for that. In fact, thinking about it, I think most would say that being dependent on the people is the least worst dependency.

23 posted on 09/09/2010 5:38:29 PM PDT by MontaniSemperLiberi
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To: Billthedrill
It is not, therefore, the Constitution that is a "living document," it is the government it controls, and just as with cell growth, where the control mechanisms for growth are corrupted natural growth can become cancer. It isn't the happiest of metaphors but it'll do for now.

Good enough for me.

What strikes me reading this paper is the concept of negative checks. One of the ongoing conversations people were having at the time was how churches should be structured. Obviously the Episcopalian system had been discredited (Church of England). But there was serious competition between the Presbyterian vs. the Congregationalist styles. In both styles, people were expected to come together and agree upon what they thought was the truth.

However in our constitution, the branches had negative checks on each other. That is, they could only stop the other branches. The Judiciary or the Executive Branch couldn't make the Legislative Branch pass a law. The Legislative Branch required a super majority to override a veto. Neither could overturn a Supreme Court decision. That could only be done by a Constitutional Amendment.

Positive Agreement vs. Negative Disagreement. That idea for protecting liberty has stood the test of time.

24 posted on 09/09/2010 5:53:26 PM PDT by MontaniSemperLiberi
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To: Jacquerie

“Our Constitution was, and is a radical departure from the existing forms of foreign governments.”

As you point out very well and this Federalist states, our founders also drew upon the experience of the thirteen states, which were much more like countries than what we think of as states today. I’ve read the government under the Articles of Confederation as being more akin to the UN than a real government.

I can’t find the quote tonight but I think it was Madison who said they drew upon eleven times thirteen years of experience in writing the constitution.

Also though, our founders made frequent references to the Polish, English, Roman, Greek, etc. forms of government when deciding what our constitution should look like. They even made obscure references to King Phillip II in making the case for why states should still exist after the National government was formed.


25 posted on 09/09/2010 6:03:40 PM PDT by MontaniSemperLiberi
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To: Loud Mime

We haven’t created a Monarchy in the Office of the President but in the collective offices of the Federal Bureaucracy.


26 posted on 09/09/2010 6:05:37 PM PDT by MontaniSemperLiberi
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To: Publius

The Period of Salutary Neglect

http://en.wikipedia.org/wiki/Salutary_neglect


27 posted on 09/09/2010 6:08:32 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi

So, you want the people to interpret the law through the judges they elect?

No, thank you.

Consider the position of the Executive; he’s the enforcement officer (”shall take good care that the laws be faithfully executed”) of our government. It makes good sense that he nominate the judges that will make him look in that constitutional duty, as well as his oath to “preserve, protect and defend the constitution of the United States.”

The public knows little about our true system of government. Handing them the keys to our judicial appointments is like giving a drunk 14 year-0ld the keys to a fully gassed Shelby Mustang on a day that the cops are on strike.

The problem his is not with the design of the system. The problem is the mutation caused by the 17th Amendment, which made the Senate a party favor of the liberals. NO good judge can get through their maze; we almost lost Clarence Thomas to their pathetic histrionics which had nothing to do with constitutional measurements.

The founders warned us of governments of the popular form. George Washington warned us of the dangers of party spirit. Your idea for the election of judges finds a home within both of these dangers.


28 posted on 09/09/2010 8:17:18 PM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime

As Madison said,

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Letting the President appoint judges has not obliged the government to control itself. Certainly not the Executive Branch. I agree that popularly electing judges has it’s downsides. However I’m not sure the negatives outweigh the positives. It shouldn’t be rejected without consideration. We can trust the American people to get it right, eventually. For instance, I’d like a good public debate on what are and are not natural rights.

Certainly there are some sources that have examined what happens to states when they have popularly elected judges. The founders had eleven years of experience with thirteen constitutions. I think we have had more experience electing judges.


29 posted on 09/09/2010 9:26:08 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi

If you cite Madison, perhaps you should agree with his opinion on the appointment of judges as well? Or his opinion on popular governments?


30 posted on 09/09/2010 10:10:51 PM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime

Hmmm. Odd question. Maybe you are trying to be ironic.

No, of course the Executive appointment of judges has not enabled a strong check on the Executive Branch. I think that’s fairly obvious from my previous post.

I’ve read more than a few of the Federalist Papers, notes from the convention (which I find are better sources for understanding the constitution) and many of the Anti-Federalist Papers. What I’ve found is that the problems with the constitution weren’t the objections of the Anti-Federalists that have turned out to be true but where the mechanisms promised by the Federalists didn’t work well enough. Madison and others thought that by appointing judges for life, then that would make them independent enough of the other branches.

They could have had the President appointed by the Legislature but decided not to because, they decided, the Legislature would tend to appoint weak executives. It turns out they may have not gone far enough with that thought. They did not think the Legislature would willingly delegate it’s authority to the Executive through the regulatory process we have today. The founders thought the Legislature would be more possessive of it’s power.

The courts should be more contemptuous of this innovation, laws through executive regulation, which goes against the spirit of the constitution. They aren’t though and I believe it’s because they are people who are sympathetic to the idea of Executive experts making decisions for the legislature. You know, kind of like themselves.

So here is my counter question to you, what natural rights exist that are not enumerated by the constitution? That is, what does the Ninth Amendment cover that isn’t covered elsewhere?


31 posted on 09/09/2010 10:54:39 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi

Just to add a reference, here a quote from #51

Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.


32 posted on 09/09/2010 11:06:13 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi

Every judge in the state of Texas is elected and that system has served us well IMHO! I would NEVER vote to change to some other method!


33 posted on 09/10/2010 6:04:28 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Loud Mime

In today’s environment it would be FAR better to elect them IMHO.

See post 32 this thread.


34 posted on 09/10/2010 6:08:05 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Loud Mime

I will cite a modern example to support my position.

Robert Bork, the finest legal mind to come along in quite some time, would be sitting on the USSC right now but for the PURELY political circus surrounding his nomination.


35 posted on 09/10/2010 6:15:39 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: MontaniSemperLiberi; Loud Mime

Of course you realize that all of this points to what a colossal mistake the 17th amendment has been.


36 posted on 09/10/2010 6:37:46 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun

Darn Right! The last chapter of my book is dedicated to the disaster of the 17th Amendment. It’s poisoning of the judiciary is noted well.


37 posted on 09/10/2010 9:55:10 AM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: MontaniSemperLiberi

Let me give you a short answer before I give you a long answer:

Madison and the founders strived to NOT give the popular voice substantial powers in the government. I not only respect their opinion, I believe it was the ultimate act in wisdom, having drawn their conclusion from much of history.

Back in their days the founders had seen lynch mobs, duels, actual tar and feathering (oh, the days!). They wanted to insulate government from such emotion. The House -alone- was designed to calmly reflect popular opinion, hence its 2 year terms.

Popular opinion can change from minute to minute. Popular opinion does not guide ships, nor pilot aircraft. Popular opinion produces more problems than it solves, because it empowers many elements, the least of which is wisdom.

If we make the constitutional change to elect judges, believe me, the Electoral College is doomed, as may be our entire republican form of government.


38 posted on 09/10/2010 10:10:19 AM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime
Tell what I would do if I could: restrict congress to ONE two-month session each year.

We have sort of an inside joke about this here in Texas where our legislature is required by the Constitution to meet for 140 days every two years. Some of us have suggested that the fellow who wrote that into the Constitution was dyslexic and reversed the sentence which should in fact read "for two days every 140 years".

39 posted on 09/10/2010 10:15:06 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Loud Mime
If we make the constitutional change to elect judges, believe me, the Electoral College is doomed, as may be our entire republican form of government.

I don't know that I entirely agree with this but will agree that we should be VERY careful in amending the Constitution. Our forefathers failed miserably during ONE presidential administration and we got the two most damaging amendments in our history as a result. The 16th and 17th.

40 posted on 09/10/2010 10:30:40 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun

LOL!!!!


41 posted on 09/10/2010 11:14:14 AM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime

You’re talking about Democracy vs. Republicanism. I’m talking about Republicanism and how to apply it to judges. The question is, should our Judicial branch be filtered through the executive branch. The fact is that filter has it’s downsides which you have not addressed. Neither have commented on whether states that elect there judges find themselves in a better or worse situation. Those are the questions that I have. Not for you specifically but the ones I am looking into. Believe me I have a fair grasp of the theory behind Republicanism and the discovery of truth through discourse.

The question I do have for you is, what natural rights exist and are recognized by the Ninth Amendment that are not enumerated in the other amendments?


42 posted on 09/10/2010 12:37:20 PM PDT by MontaniSemperLiberi
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To: Bigun

I do think there is a fair compromise on the extreme that the 17th Amendment took. I think we could Amend the 17th amendment to include a provision for removing Senators by an act of the state legislature. Senators could be popularly elected but they would still be beholden to the interests of the states as separate governments.


43 posted on 09/10/2010 12:41:26 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi
You’re talking about Democracy vs. Republicanism. - - Yes, that's the issue. I'm holding on the republicanism, you are advocating popular control = democracy.

I’m talking about Republicanism and how to apply it to judges. - - Through popular vote, the "republican" tag fails to apply.

The question is, should our Judicial branch be filtered through the executive branch. The fact is that filter has it’s downsides which you have not addressed. --- No, I admit the downsides, which were not in our original Constitution.

Neither have commented on whether states that elect there [sic] judges find themselves in a better or worse situation. - - Straw man argument; State Governments are far different from the design of the Fed Government.

Believe me I have a fair grasp of the theory behind Republicanism and the discovery of truth through discourse. - - but you want popular control over the most important part of our republic, as it is over the other two. I firmly disagree with your premise and your conclusion.

The question I do have for you is, what natural rights exist and are recognized by the Ninth Amendment that are not enumerated in the other amendments? - - - What a strange question. The very presence of Amendment IX was to not have the government defining rights not enumerated. What's more, you are talking about "natural rights" instead of constitutional rights. The question is very strange, bordering on the metaphysical.

44 posted on 09/10/2010 1:29:41 PM PDT by Loud Mime (It's the CONSTITUTION! www.initialpoints.net)
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To: Loud Mime
...you want popular control over the most important part of our republic, as it is over the other two

I'm sorry but I could not let this pass as it is just plain wrong.

There are under our Constitution three coequal branches of government. The problem we currently have is due to the fact that the legislative and executive branches have failed to assert their powers to check the judicial branch.

45 posted on 09/10/2010 1:51:26 PM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Loud Mime

I strongly suggest that you take the time to listen to the information at the link below!

http://www.judicialsupremacyvscoequalbranches.com/?page_id=2#video


46 posted on 09/10/2010 1:57:19 PM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Loud Mime

you are advocating popular control = democracy.

No not at all. I’m not sure you know what the word democracy means. Popular election of representatives, or judges in this case, isn’t democracy. That is Republicanism. In a Republic one elects Representatives to decide things for the whole. Democracy would be if we had the people directly vote on Supreme Court decisions. Maybe you just got off on an idea and are defending it no matter what. Moving on.…

The very presence of Amendment IX was to not have the government defining rights not enumerated.

I’m sorry but you’re off on this one too. The purpose of the Ninth Amendment was to make it clear that natural rights not otherwise enumerated in the Constitution were still to be recognized. One problem we have today is that the USSC has decided the Ninth Amendment defending natural rights is almost powerless in the face of the Enumerated Powers in the Constitution. Most scholars agree, between the Commerce Clause and the Elastic Clause, the USSC has all the justification it needs to let the government force us to buy health care. Our constitutional problem is that the USSC is made up of people defer to the other two branches, Scalia and Kagan both for instance.

47 posted on 09/10/2010 3:05:04 PM PDT by MontaniSemperLiberi
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To: Loud Mime

Madison and the founders strived to NOT give the popular voice substantial powers in the government.

I’m sorry but I can’t let this one go either.

Madison was primary proponent of the Virginia Plan, which had a strong Bicameral Legislature. Both Camerals (ha! Camerals!) of which were to have proportional representation. If you’re arguing against a Republic via proportional representation, you’re arguing against Madison.

48 posted on 09/10/2010 3:19:21 PM PDT by MontaniSemperLiberi
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To: Bigun

I agree, they should all be checking each other. When they don’t, individuals lose.


49 posted on 09/10/2010 3:34:54 PM PDT by MontaniSemperLiberi
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To: MontaniSemperLiberi

I certainly think that would be an improvement over the current situation but I’m going to have to think it through before I fully endorse the idea.


50 posted on 09/11/2010 4:36:35 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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