The Implementation of Federalism

Agenda

• The Compound Republic, Federalist 51

• Necessary and Proper Clause Federalist 44

• Federalist Activity

Learning Goals

• Define Madison’s concept of the Compound Republic and understand how it illustrates the concept of Federalism

• Understand the relationship between the Federal and State governments.

• Explain what powers the Necessary and Proper Clause grant to Congress

Federalist 51

• 1. What are the three branches of government? Why must each branch possess “a will of its own”?

• 2. Why does Madison when he claims that government is a “reflection on human nature”?

• 3. What are the checks and balances between the Executive and Legislative branches?

If Men were Angels

• “Ambition Must be Made to counteract ambition”

• “But what is government itself but the greatest of all reflections on human nature? If men where angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”

Checks and Balances

• In framing a government that 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 force it to control itself.

• The private interests of every individual may be a sentinel over the public rights.

Checks and Balances

The Compound Republic

• 4. How does a Federalist structure of government provide additional checks and balances?

Benefits of the Compound Republic

• “In a single republic, all the power surrendered by the people is submitted to the administration of a single government...

• In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate governments.”

Benefits Cont.Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Factions Federalist 51

• It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.

Benefits of the Extended Republic

• “In the extended republic of the United States and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”

Summary

• The new Constitution:– Creates a large republic, that dilutes the

power of factions and promotes moderation.– Creates a system of checks and balances

that make human weakness an asset:• Divide power between states and federal

government.• Separate powers within both governments

Federalist 44 Questions

• 1. Madison states without the Necessary and Proper Clause, the new Constitution would be a “dead letter.” Why does Madison believe that the necessary and proper clause necessary for effective and good government?

A Dead Letter

• “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter.”

Alternatives

• 1. Do as the Articles of Confederation and deny anything not expressly delegated

• 2. Attempted to list every power

• 3. Attempted to create a list of what Congress may not do

• 4. Silent on the subject, suggesting an inference

Bad Responses

• 1. Federal government would have been stripped of any real power

• 2. Impossible to list all; “They would have to also accommodate, not only the existing state of things but also future changes. For every new application of a general power, the particular powers, which are the means of attaining the objective of the general power, must vary as the objective changes, or vary while the objective remains the same.

Bad Responses Cont

• 3. No less unrealistic, defaults in the list grant authority on strange subjects.

• 4. Silent on the issue, the Necessary and Proper clause would be inferred

Need for Necessary and Proper

• No axiom is more clearly established in law or in reason, that whatever the goal, the means are authorized. And whenever a general power to do a thing is given, every particular power necessary for doing it is included.

Federalist 44 Questions Cont.

• 2. What does Madison assert to be the check on the national legislature if they overstep the intended power of the Necessary and proper clause?

• 3. Opponents of the new Constitution claim that the Federal government will overpower the individual states. What is Madison’s response to this claim?

National Congress Oversteps its Authority

• The States will always be ready to note deviations, to sound the alarm to the people, and to exert their local influence to change federal representatives.

• Checks and Balances

Governors’ Response to Obamacare

• http://www.youtube.com/watch?v=H0pL4-EkRvI

The Supremacy Clause

• "This Constitution, and the Laws of the United States which shall be made in pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

“A Monster”

• The authority of the whole Union would have been subordinate to the States. It would have seen a monster in which the head was under the direction of its members.– 1. States Constitutions claim to be absolutely

sovereign, annul new powers– 2. Some States do not even recognize the

existing confederacy– 3. State Constitutions are different