According to Madison, what conditions have historically plagued “popular governments?”
Instability, injustice, confusion.
Had the US effectively dealt with these conditions? Explain.
No. There have been “improvements” in the US, but there are “complaints” from “virtuous citizens” that the government is unstable, that the public good is disregarded, and that measures are decided by an “overbearing majority.”
Describe the two methods of removing the causes of factions.
Destroying liberty is a remedy that is worse than the disease.
Giving every citizen the same opinions, passions and interests is impractical because of the natural diversity of people.
What is the most common cause of faction?
The unequal distribution of property, or wealth: property owners v. non-property owners, creditors v. debtors, landed wealth v. manufacturing wealth.
Is the “republican principle” more effective in controlling the effects of a minority faction or a majority faction? Explain.
It is more effective in controlling the effects of a minority faction because a simple majority vote will thwart the will of a minority. A majority faction, however, may sacrifice both the public good and the rights of citizens through its sheer voting power.
Is a republic or a pure democracy more suitable for controlling the effects of factions? List the differences that Madison cites between these two forms of government.
A republic is more suitable than a pure democracy.
1) A republic delegates the chores of government to a small number of elected citizens.
2) A republic includes a greater number of citizens and a larger geographical area.
What are the benefits when there is a “delegation of the government to a small number of citizens?”
Such a body may include citizens of wisdom, patriotism, and love of justice who better understand the true interest of their nation. The danger, however, is that men of “sinister designs” may be elected but then betray the public good.
The larger the number of citizens, the less likely it is that unworthy candidates can get away with the practice of their “vicious arts.”
A large territory would be more likely to have a large number of interests. With such a large number of interests, it is less likely that one interest could monopolize power.
READING GUIDE FOR FEDERALIST #51
What is essential to the “preservation of liberty?” How should this “be so constituted?”
Each department should have a will of its own. Each department should be politically independent of the others, i.e. each should have as little agency as possible in the appointment of the others.
Explain the following: “A dependence upon the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Elections are important to resist tyranny, but they are not enough. Other measures are needed. Madison goes on to describe the roles of separation of powers, checks and balances, and federalism in this regard throughout the balance of this essay.
In a republican government, which branch is the strongest? Identify three ways of “remedying this inconveniency.”
Giving the two houses of Congress two different means of election,
List two ways in which the federal system of the US “places that system in a very interesting point of view,” i.e. protects against tyranny.
In the “compound republic” of the US, power is divided between two distinct levels of government, i.e. state governments and the national government, and then each level in turn subdivides itself; hence a “double security.”
The multiplicity of interests within the US will make it unlikely that tyranny will develop. In a small republic, there is a greater chance that a majority faction will develop and oppress the people. In a large republic, there is less chance that this will occur simply because the nation is so vast and because there are so many interests present.
*** Make sure that you know the role of the following “auxiliary precautions” in guarding against tyranny:
On what grounds does Hamilton argue that the judicial department of government is the least powerful branch of government?
It has the least capacity to annoy or injure the political rights of the Constitution. The executive makes appointments and holds the sword, and the legislature commands the purse and passes the laws. The judiciary has neither force, nor will; all it can do is exercise judgment and depend upon the executive to carry out its judgments.
Why do you suppose that Hamilton was so careful to point out the relative impotence of the judiciary?
To alleviate fears that this new department of government (there was no national judiciary under the Articles of Confederation) would be used to deny rights of the people.
What was Hamilton’s position regarding the power of the judiciary to declare void any legislative acts that were contrary to the Constitution?
The courts are needed to act as an intermediary between the legislature and the people in order to check the power of the former. If a law is in conflict with the Constitution, the latter must prevail because it represents the will of the people, as opposed to their representatives. Laws passed by representatives cannot supercede the fundamental law of the Constitution that represents the will of the people. The interpretation of laws falls to the judiciary because that is a “natural” function of the courts.
Why does Hamilton consider the independence of the judiciary to be a vital component of constitutional government?
Because the courts are the bulwarks of a limited Constitution against the encroachments of the legislature. Without judicial independence, judges would be unable to effectively check the legislature.
What arguments does Hamilton use to support life tenure for judges?
Life tenure frees judges from political pressure that might come from the legislature or executive if periodic appointments were made. Being freed from such pressure enables judges to guard against laws that are contrary to the Constitution.
Being a judge places great demands upon a person. Few men have the necessary abilities to be a judge , and few have the necessary ethical qualities, as well. Periodic appointments would discourage those few who are qualified, and would lead to less competent and less principled judges.