Lesson 1.5 · Unit 1 · CA HSS 12.1.5
Federalist 10, 51 and 78, and the machinery they describe
This standard lists eight features at once: separated and shared powers, organized interests, checks and balances, an independent judiciary, enumerated powers, rule of law, federalism and civilian control of the military. Three Federalist essays account for most of them.
- Separated powers assign legislative, executive and judicial authority to different institutions; shared powers give each a role in the others' work.
- Federalist 10 addresses organized interests, which Madison calls factions, and argues that a large republic controls them better than a small one.
- His argument is counterintuitive: a larger republic contains more factions, so no one of them easily forms a majority, and a majority must therefore be assembled from several with different aims.
- Federalist 51 addresses checks and balances, supplying the mechanism of lesson 1.4: constitutional means plus personal motives.
- Federalist 78 addresses the judiciary, arguing that it is the least dangerous branch because it commands neither the sword nor the purse, and that its independence requires permanent tenure.
- Enumerated powers are those specifically listed, principally in Article I section 8, and the federal government is understood to possess no others.
- The rule of law means the same law binds the government and the governed, and that it is applied through established procedures rather than by will.
- Federalism divides authority between national and state governments, each with its own sphere.
- Civilian control of the military is secured by making the President commander in chief, giving Congress the power to declare war and to fund the army only two years at a time.
Where students lose marks: summarizing Federalist 10 as "factions are bad". Madison's argument is that factions cannot be eliminated without destroying liberty, so the design controls their effects instead.
The sources. James Madison, Federalist No. 10, 1787, and Alexander Hamilton, Federalist No. 78, 1788. Public domain.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease.
Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.
Step one: note what Madison's definition includes. A faction may be a majority, not only a minority. That is the point of the essay: a majority faction is the dangerous case, because in a republic a minority faction is simply outvoted.
Step two: follow the elimination argument. Causes of faction can be removed by destroying liberty or by making everyone think alike. The first is worse than the disease and the second is impossible. Therefore causes cannot be removed, and only effects can be controlled. That is the structure of the whole essay.
Step three: state the large republic argument. In a small republic one interest may constitute a majority by itself and rule without restraint. In a large one there are many interests, none large enough to govern alone, so a majority must be assembled from several, and assembling it requires compromise.
Step four: apply it to a constructed case. In an invented small state of 40,000 people where 60 percent are wheat farmers, the farmers can pass whatever they like. In an invented large republic of four million containing wheat farmers, cattle ranchers, shipbuilders, weavers, merchants and miners, none is a majority, so any measure needs agreement across groups with different interests.
Step five: state the cost. The same mechanism that blocks a majority faction also makes it hard to assemble a majority for a genuinely good measure. Madison accepts that trade explicitly, which is the same trade-off as lesson 1.4.
Step six: read Hamilton's claim about the judiciary. Neither force nor will, merely judgment. The courts cannot enforce their own decisions and cannot spend money, so they depend entirely on the other branches complying. That is his argument for why an independent judiciary is safe.
Step seven: draw the conclusion Hamilton draws. Because the judiciary is weakest, it needs the strongest protection, which is permanent tenure during good behavior. A judge removable by the legislature would decide cases with an eye on the legislature, and the branch with the least power would be captured by the one with the most.
Step eight: account for the remaining features. Enumerated powers limit what the federal government may do at all, so a question never reaches the checks if no power covers it. The rule of law means officials are bound by the same law they enforce. Federalism adds a second division alongside the separation of branches, so power is divided twice. Civilian control is secured structurally: the commander in chief is an elected civilian, only Congress may declare war, and army appropriations are limited to two years, so a standing army must be refunded by each new House.
Questions 1 to 5 are recall. Questions 6 to 10 ask for reasoning.
- Define a faction as Madison does.
Show the full solution
Citizens, whether a majority or minority, united by a passion or interest adverse to others' rights or to the common good
- What does Federalist 51 supply?
Show the full solution
Checks and balances: constitutional means plus personal motives to resist encroachment
- Why does Hamilton call the judiciary the least dangerous branch?
Show the full solution
Because it commands neither the sword nor the purse and has neither force nor will, but merely judgment
- What are enumerated powers?
Show the full solution
Powers specifically listed, principally in Article I section 8; the federal government has no others
- Name two ways civilian control of the military is secured.
Show the full solution
An elected civilian is commander in chief, Congress alone declares war, and army appropriations last only two years
- Why does Madison say the causes of faction cannot be removed?
Show the full solution
Because there are only two ways to remove them and both are unacceptable. Destroying the liberty that allows people to organize around shared interests would be a remedy worse than the disease, since liberty is what the government exists to protect. Giving every citizen the same opinions, passions and interests is impossible, because people differ by nature and circumstance. Since causes cannot be removed, the design must control effects instead. Removing them requires destroying liberty or enforcing uniformity, and neither is available
- Explain the large republic argument with the constructed example.
Show the full solution
In a small state of 40,000 where 60 percent are wheat farmers, the farmers constitute a majority by themselves and can pass whatever serves them without consulting anyone. In a large republic of four million containing farmers, ranchers, shipbuilders, weavers, merchants and miners, no single interest is a majority, so any measure requires assembling support across groups whose interests differ, and assembling it requires compromise that moderates the measure. Many interests mean no one of them can rule alone, so majorities must be built by compromise
- Why is a majority faction the dangerous case?
Show the full solution
Because a minority faction in a republic is simply outvoted, so the ordinary machinery of majority rule contains it without any special design. A majority faction controls that machinery, so voting cannot stop it and it can pursue its interest against the rights of others through entirely lawful means. Madison's whole essay is addressed to this case, which is why his definition explicitly says a faction may amount to a majority. Voting contains a minority faction and cannot contain a majority one
- Follow Hamilton's reasoning from weakness to tenure.
Show the full solution
Because the judiciary has neither force nor purse, it cannot enforce its own judgments or fund anything and depends on the other branches complying. That weakness means it is the branch most easily overwhelmed, so it needs the strongest structural protection. A judge removable by the legislature would decide cases with an eye on the legislature, and the weakest branch would be captured by the strongest. Permanent tenure during good behavior is the remedy. Its weakness is precisely why it needs permanent tenure to stay independent
- Explain how power is divided twice in this system.
Show the full solution
Horizontally and vertically. Horizontally, the separation of powers divides legislative, executive and judicial authority among three branches of the national government, each with means to resist the others. Vertically, federalism divides authority between the national government and the states, each with its own sphere. A citizen is therefore governed by two governments, each internally divided, so any exercise of power must clear two different kinds of division. Separation of powers divides horizontally and federalism divides vertically