Federalist No. 51

Understanding Federalist No. 51: translating the text & the big ideas

The Federalist papers The Federalist Papers

• a series of 85 essays published in New York newspapers and distributed nationally in 1787-1788
• the essays explained and defended the proposed federal constitution of 1787
  • which can be generally defined as creation of a new, centralized government under "republican" principles
    • those being representation, separation of powers, and limits on the power of the majority
• see here for audio book version of the Federalist papers:
  • The Federalist Papers (version 2) (librivox.org)

click EXPAND for more on the Federal Papers, their purpose and authorship

• the essays were signed "Publius"
  • Publius Valerius was one of founders of the Roman Republic who overthrew the Etruscan kings

Authors:

• • Alexander Hamilton, John Jay and James Madison

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• Alexander Hamilton
  • • important federalist thinker and politician
    • was Washington's first Secretary of the Treasury
    • Hamilton applied federalist principles towards application of the central government's powers
• John Jay
  • an important Revolutionary era patriot, diplomat and political leader
  • Jay became the first Chief Justice of the U.S. Supreme Court
• James Madison
  • provided the philosophical basis for the new Constitution
  • became fourth president
  • known as the "father of the Constitution" because:
    • Madison set the agenda for the Constitutional Convention
      • he created a "blueprint" (outline) for the new constitution
    • and framed his ideas through history and philosophy
• Federalist Papers identified authorship:
  • Alexander Hamilton (51 articles: Nos. 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85)
  • John Jay (5 articles: Nos. 2–5 and 64).
  • James Madison (29 articles: Nos. 10, 14, 18–20,[14] 37–58 and 62–63)

Publication

• the Papers were published in three New York newspapers
  • Daily Journal, New-York Packet and Daily Advertiser
  • they were reprinted elsewhere and subsequently printed as a collection

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"Addressed to the People of New York"

• New York State was a battleground for the arguments over adopting the proposed Constitution because of strong anti-federalist sentiment, including the Governor at the time, George Clinton.
• While the Federalist (so-called at the time) was reprinted elsewhere, it's largest circulation was in New York
  • it is unclear the extent to which it influenced other states, such as Pennsylvania which ratified the Constitution amidst the publication of the Federalist Papers.
  • Regardless of their direct impact upon the ratification of the Constitution, the Federalist Papers magnificently laid out the logic, reasons, and purposes of the proposed Constitution and have ever since been used by historians, the Courts, and the federal and state governments for guidance and clarification of the meaning of the Constitution.

Purpose of the Federalist Papers

• to explain and defend the proposed Constitution
• and to counter arguments made against it by the anti-federalists
• to influence the states to adopt the new constitution

Ideas behind the Papers

• to identify the need for a strong central government
• to identify the protections for the states and the people from that central government
  • principally through separation of powers, checks & balances, and accountability to the people

Legacy of the Papers:

• • stand as evidence of the ideas and intentions behind the design of the Constitution
  • have been used in Courts in order to help define the legal meanings of the Constitution
  • remind Americans of the philosophy of government behind the Constitution

Federalist No. 51 Background

• Federalists 37-84, in general, review the proposed structure of the federal government and discuss it's theoretical foundations in a republican form of government
• In Federalist 51, Madison discussed "checks and balances":
  • The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments"
• Federalists 52-56, address the House of Representatives, the direct representative body of the people
  • Federalist 52: "The House of Representatives"
  • Federalist 53: "The Same Subject Continued: The House of Representatives"
  • Federalist 54: "The Apportionment of Members Among the States"
  • Federalist 55: "The Total Number of House of Representatives"
  • Federalist 56: "The Same Subject Continued: The Total Number of the House of Representatives
  • Federalist 57: "The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many"

Summary of purpose

• Madison discusses the purposes and benefits of divided government and a system of "checks and balances"
  • = each divided portion of the government can "check" the other and exercise "balanced" powers
• Madison also addresses the paradox that government is necessary to inhibit human ambition
  • "If men were angels, no government would be necessary"
• while at the same time propelling it for one "faction" at the expense of others
  • the solution,, which Madison first proposed in Federalist No. 10, is
    • not to prohibit faction and ambition
    • but to limit both through divided and balanced government
    • making it difficult for any single faction to control all of them
    • = ""Ambition must be made to counteract ambition."
• Madison also importantly addresses the need for checks and balances within the legislature itself, thus its bicameral (2 houses) form
• a significant element to Madison's argument is that a large republic with the federal system of checks and balances within the federal government and within the states themselves, would protect the liberties of the people

ORIGINAL TEXT	SUMMARY/ ANALYSIS
FEDERALIST NO. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments'''''New York Packet, Friday, February 8, 1788' To the People of the State of New York:	Authorship Federalist no. 51 is generally attributed to James Madison Title "Structure of Government" = constitutional arrangement of the branches of the federal government "Checks and Balances" "checks" = power to stop (a law, policy or court case) "balances" = having opposing powers "Different Departments the branches of the federal government
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.	How to structure the separation of powers? Federalist 51 considers the reasons and effects of the concept of "separation of powers." The idea has existed since the ancient world, especially Rome, whose constitution (form of government) had clear separations of power. Medieval European monarchies shared distinct powers with the Catholic Church, a source of conflict that led to the Protestant Reformation and the English Reformation (Henry VIII's declaration of independence from papal authority). Into the Age of Enlightenment, European thinkers considered ways and reasons to protect the rights of the people, which they considered "natural", or inherent, and not-given or provided by governments. In his work, "The Spirit of the Laws" (1748) the French thinker Montesquieu most clearly articulated the theory of "separation of powers." Montesquieu envisioned a government of distinct powers and roles, consisting in its "administrative" forms of an executive, legislature, and judiciary, with each to hold distinct and balanced powers that were also inter-dependent so that no single branch could act fully independently of the others. Importantly, each branch must only be able to exercise powers for its own responsibility. Here, Madison explains why the proposed Constitution creates three branches of government and how each shall "keep each other in their proper places" (which we call checks and balances) . He proposes that there is a theoretical reason for it, which he will discuss in "a few general observations."
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. 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. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.	Separate & distinct powers for the preservation of liberty Here Madison clarifies that the purpose of the separation of powers is for the "preservation of liberty." Following his argument in Federalist No. 10, in which he introduced the concept of allowing competition of factions (opposed groups) as opposed to fruitlessly suppressing them, which inherently violates liberties, In Federalist No.10, Madison explored how the separation of powers protects the liberties of the people from abuse by government controlled by a single faction. Here he explains the mechanics (functions/processes) of the separation of powers and the necessary elements to it: "each department should have a will of its own" the people should be the source of appointments, not the departments themselves each department should have "as little agency as possible" in the appointment of the members of the other, i.e., should have as little as possible say in the appointments of officials in other departments however, it would be dangerous to allow the judiciary to appoint its own members, because otherwise the judiciary would have no accountability from the other departments there should be no dependencies or obligations from the appointment of officials from one department to the other i.e. the people should be the source of all appointments and not the departments, not should their pay (emoluments) be dependent from one to the other.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? 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.	Ambition must be made to counteract ambition Here Madison considers how the concentration of power, even within one department or another, can be dangerous. He then considers why that should be a concern at all, from which we have the famous: But what is government itself, but the greatest of all reflections on human nature? 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. So government must at once control individual ambitions while also controlling itself Madison calls his "the great difficulty" 1st enable government to control the governed 2nd control government itself ("oblige it to control itself") Madison recognizes that "auxiliary precautions" are necessary to effect (make happen) these protections
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.	Checks & Balances Madison now introduces the concept of "opposite and rival interests," which we call today "checks and balances." He explains that the necessary "constant aim" of government -- if it is to protect the liberties of its people -- is to "divide" and "check" one part against the other in order to protect the liberties of the citizens "private interest of every individual may be sentinel over the public rights" = protection of private (individual) rights are more important than the "public" (government) rights Therefore, Madison argues, the "private interest" (rights) must not be "less requisite" than the "supreme powers of the State"
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own departmen[t]? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.	Why ultimate authority must reside in the Legislature, representatives of the people Madison here argues that separate, balanced powers may not accept one another's authority, so they must obey an ultimate authority, which he assigns to the legislative branch as direct representative of the will of the people. However, since a legislature can abuse power, it is prudent (wise) to also divided it into "different branches" and "to render them, by different modes of election and principles of action" in order to check and balance the one branch of the legislature against the other. thus the House and the Senate thus the different terms of office for each Madison then assesses (measures) a necessary constraint (block) against the authority of the legislature, as necessary check against it's overwhelming powers Madison is here setting the justification for the executive veto (blocking a law passed by the legislature) He considers that the veto will be neither "altogether safe nor alone sufficient", should it not be used with "firmness" or used too much ("perfidiously abused") He then considers that this "defect" of the "absolute negative" (veto) might be "supplied" (fixed) by a "qualified connection" between the weaker department (the executive) and the "weaker branch of the stronger department" (the Senate?) in order to defend itself Finally, Madison wonders that if the federal constitution is not enacted will the "State constitutions" will be "infinitely less able to bear such a test", i.e., without a federal government with checks and balances, the state governments will be susceptible to tyranny that could be avoided by enacted a system of checks and balances it is worth noting that the existing central government, operating under the Articles of Confederation, was a unicameral legislative system without a working executive branch. Madison's insight that the proposed federal constitution would impact state constitutions is essential.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. :	Note: the ideas of a "republican" form of government in the states was generally accepted, the questions being the nature of the relationship between the states and any central government. The anti-federalists feared a strong central government and preferred the existing "confederation" (a loose federation, or joining of states) as opposed to a "federation," which,as proposed in the Constitution, would be a much stronger central government, and which Madison here calls a "federal system".
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. 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 departments. 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.	Single v. compound republics In a "single" republic, i.e, with a single national and no local governments, the only protection against abusive governance is the separation of powers within that government. However, in a "compound republic," Madison reasons, the power of the government that the people "surrender" to it (i.ei., affirming that all power resides in the people) will be safeguarded (protected) by the separation, division and balances of power between the "distinct and separate departments", i.e. state and federal governments and checks and balances within each. Madison thereby defines the "federal" system of both states and central government as an additional protection against governmental abuse He calls this a "double security" of the rights of the people in that the "different governments will control each other and that each will be controlled by itself"
Second. 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. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.	Majority encroachment of minority rights Next, he considers how the separation of powers will protect different segments of society from abusing the other. He accepts that "different interest necessarily exist", but without protection of the minority those interests will be abused by the majority. here we have a core argument for the federal system in that it will both allow for majority rule while also limiting that majority rule through separation of powers and checks and balances
There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.	Protecting minority rights: hereditary rule "This evil" = whereby the "majority be united by a common interest" (majority rule) and use that majority (51%) power to command / rule the minority (49%) Madison cites two "methods" to prevent "this evil": "creating a will" that is not solely representative of the majority i.e., monarchies ("hereditary or self-appointed authority" dividing and separating "descriptions" (i.e. combinations) so that no single faction can obtain a complete majority Madison rejects protection of minority rights via hereditary rule (monarchy) as "precarious"
The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.	Protecting minority rights: separation of powers Minority rights will be protected by the separation and division of powers protection from "combinations of the majority" Civil protections are as important as religious protections just as the right to practice one's religion ought to be protected, even if it is not the dominant religion... Madison importantly asserts that just as the rights of minority religions must be protected, the rights of political minorities must be protected equally. The more "interests" or "sects" (i.e., opposing points of view) the higher the security for all across a large country
This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.	Federal Authority to prevent combinations of states The "federal" form of government will protect from states that may "combine" to control the others or create regional alliances the idea that every state is equal to one another in modern America seems logical; however, regional alliances, as such that led to the Civil War, were of great concern to the Founders. Madison argues here that a "proper federal system" would protect against such "oppressive combinations" which would otherwise "diminish" the "rights of every class of citizens" and "some member of the government" (i.e., a state)
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.	Justice is the purpose of government If one faction is allowed to dominate others, there will be no justice just as strong people may use government to control the weak the weak may seek government to protect themselves from the strong the balance between both will protect "the weaker as well as the more powerful"
It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.	Factions within states more likely without federal government Madison uses the example of Rhode Island, one of the smallest states, to make the point that if the states remained independent, factions would more easily control those states themselves and thus jeopardize the rights of the people and the independence of each state.
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; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.	Protection in the "Extended Republic" or "the larger society" Here is a central point that Madison in justifying the federal system: that an "extended republic" (i.e., geographically large and heterogenous as opposed to a "small republic" that is homogenous) protects against a "coalition of the majority" to take over and abuse the rights of a minority the reason for this is that the "variety of interests, parties, and sects" that are "embraced" (part of) a large republic would diminish the ability of a majority coalition to form additionally, since a minor party will be less afraid of a large major party, it will have "less pretext" to protect itself which means that extreme measures would not be necessary to protect minor parties, resulting in "a will not dependent" on them a "larger society," Madison argues, is therefore more capable of self-government (republican), given the protections built in to the "federal principle" that he outlines in the essay.
PUBLIUS.	All the Federalist papers were signed "Publius," a reference to a founder of the Roman republic

Sources:

• Text: The Federalist No. 51, [6 February 1788] (archives.gov)

• Federalist No. 51 - Wikipedia
• Microsoft PowerPoint - C. III. Federalist_51NT.ppt [Compatibility Mode] (uh.edu)