Week 9 - The Principles of Constitutionalism, The Federalist Papers

When does separation of powers makes sense?

when we think about the state as a whole.

• You can’t understand why powers are divided unless you first understand what the state is supposed to do.

• The purpose of the state explains why different institutions (like legislature, executive, and judiciary) exist and how they should interact.

What is the traditional view of the purpose of separation of powers?

mainly about protecting liberty, just to prevent tyranny

Why does the author believe that the traditional view is incomplete?

too narrow and based on a weak understanding of the state’s purpose.

What goal/ideal leads to a better version of the separation of powers?

make the state function well and serve the common good, isn’t only to prevent abuse of power

• Each institution contributes in its own way to achieving good governance.

Separation of powers is about both…

division and connection.

• Institutions should have distinct functions, but they also need to cooperate.

• The proper relationship isn’t constant conflict—it’s comity (mutual respect and cooperation).

What helps states make better decisions?

Cooperation

• Different branches see different parts of the “common good.”

• By working together, they refine policies and make state actions more balanced and effective.

When is it acceptable for one branch to be given powers that seem to belong to another.

if those powers help the state function more effectively overall.

What is the liberty-focused model view?

separation of powers protects individual liberty by making tyranny and arbitrary state action harder.

How does Liberty-focused model protect ?

through deliberate friction which slows and complicates state action, power is split between branches that check each other, this is supposed to safeguard people from autocracy

According to the liberty-focused model view, what must the state align before it can act against you?

having to get legislature, executive, and courts all aligned

What are the problems with the liberty model?

• If the only goal were friction, you could randomly assign functions (e.g., courts make statutes, legislature decides individual cases) and still get lots of friction—but that obviously doesn’t match our usual idea of a proper separation of powers.​

• It wrongly assumes liberty always opposes a strong, capable state, ignoring “positive liberty” (the state helping create real options and protections for people, e.g., welfare state, regulation, security).​

• Liberty is also threatened by other actors (private power, other states), so the state must be able to act effectively to protect citizens; too much friction would block needed protection.​

• More generally, this model treats the state mainly as a threat (“negative constitutionalism”) and misses the idea that the state’s point is to advance members’ well-being, which requires effectiveness

What is the view from the efficiency-focused model?

separation of powers is guided by efficiency: powers should be given to the institutions best suited to use them well.

What does Locke believe separation of powers is about?

partly about human limits and institutional design: legislatures are bad at judging particular cases fairly, so courts should do adjudication; tasks should match institutional strengths

What was the Federalist vision regarding separation of powers?

meant both to restrain tyranny and to enable effective government; it had efficiency, not just liberty, as a central guide

What does the author believe about the liberty vs efficiency split?

overstated, if liberty is one of the things the state exists to preserve, then an efficiency-guided separation of powers will naturally include liberty as part of what it aims to achieve,

Why do legislatures large and diverse?

• large size ensures a wide mix of opinions and experiences.

• On any topic, there will probably be some members who understand it well, though they’ll usually be in the minority.

• This promotes well-informed debate, but the final vote doesn’t require expertise—everyone gets a say, expert or not.

Why do legislatures exist?

so that ordinary citizens can have a say in how their country is run—through elected representatives

What are legislatures made up of, and why?

made up of “amateurs,”
Their legitimacy comes from being elected by the people, not from having special qualifications.

• It would be undemocratic if only experts could speak or vote on policies.

• Experts can give evidence (like in committees), but they must persuade the non-experts, not command them.

Why are legislatures bad at drafting laws?

• Most members lack technical knowledge needed to write detailed legal rules.

• Majorities constantly shift, so laws might end up inconsistent—one vote could pass a rule, another could contradict it.

party system helps maintain consistency, since party discipline keeps members voting together.

What are legislatures good at?

oversee and challenge the executive branch (the government) and help set overall policy direction

Why is US Congress a partial exception to being “bad” at drafting law?

• It manages this because it has powerful committees that develop expertise and rely on professional advisers and legal drafters.

• Still, even in the U.S., the executive branch has gained a bigger role in drafting laws over time.

• American statutes also tend to be less detailed and more general, so courts interpret them more broadly compared to British courts.

What type are laws do legislatures make?

Laws passed by legislatures—statutes—are meant to state broad principles that ordinary people can understand.

• If the changes to the law are too complex or technical, statutes become less effective, and more technical bodies (like bureaucratic agencies) may need to handle the details instead.

What is the Courts main purpose?

exist to settle disputes and adjust the law when needed.

What is the Courts structure ?

resolving conflicts between two opposing sides (the "triadic structure": judge + Party A + Party B).

Court use…

few judges per case

To change laws, unlike legisltaures…

for court cases, you might go to any of many courts; approach one legislature to change a law

What do Courts depend on for their function? What are the consequences for depending?

depend on the parties bringing the case, Courts can’t act unless at least one party (or the state in criminal cases) brings the dispute.

• Consequences:

  • Courts miss disputes where parties don’t (or can’t) sue.

  • Judges only hear arguments from the parties involved—no input from outsiders.

What three ways does Court structure limit judicial law-making?

1. Limited information

2. Need for coordination across many judges/courts

3. Fairness and predictability

How does limited information limit judicial law-making?

• Judges rely on what parties present—they’re not policy experts and can’t easily assess broad social impacts.

• This justifies "constitutional myopia": Judges focus narrowly on the case at hand, leaving big-picture effects to legislatures/executives.

How does the need for coordination across many judges/courts limit judicial law-making?

• With many courts and judges, decisions must cohere to avoid chaos.

• Judges cite past cases to align with colleagues, making changes seem gradual and collective (not one judge’s whim).

• Radical rulings need heavy justification from precedent to stick.

How does fairness and predictability limit judicial law-making?

• Why should your case turn on which judge you get? Judicial reasoning hides this by pretending decisions are inevitable based on precedent.

• Legal reasoning is narrow and incremental:

  • Builds on statutes + prior cases.

  • Avoids broad policy debates (judges aren’t equipped for them).

  • Makes law changes predictable, so people can plan their lives without surprises.

What does the executive do for government?

"heavy lifting" of government: enforces laws, runs the state, and handles specialized tasks like foreign policy and military.

Unlike legislature/courts, Executive has…

technical expertise

• Divided into specialized offices (e.g., foreign affairs, defense) with professional staff selected for skills/experience.

• Legislators debate broadly as amateurs; judges handle varied cases legally; executives focus narrowly and professionally.

• Early thinkers (Locke, Federalist Papers) gave executives powers like treaties, military command, pardons, vetoes.

What is the difference between Presidential vs parliamentary systems?

• Presidential (e.g., U.S.): President elected separately, independent of legislature, appoints many officials politically.

• Parliamentary (e.g., UK): Prime minister from legislature, depends on its support—but huge divide below the top:

  • Massive civil service (hundreds of thousands) is apolitical/technocratic, barred from Parliament.

  • Ministers have limited control over appointments (vs. U.S. president's broad power).

• Result: Parliamentary systems often have stronger executive-legislature separation in the bureaucracy.

Where does the Executive’s core power come from?

force/coercion (but rarely used)

• Enforces legislature/court decisions (taxes, arrests, contracts).

• Backed by coercion (fines, prison), but most people comply voluntarily.

• Robert Cover: Law = "institutionalized violence," executed by executive officers.

How does Executive make law?

via "delegated legislation"

• Legislatures set broad policies but struggle with details (due to amateur nature, slow process, poor negotiation).

• Executives fill in technical rules (e.g., regulations implementing statutes).

• Advantages:

  • Handles complex/technical details.

  • Negotiates (e.g., with EU, private groups).

  • Makes quick changes (emergencies, fixes).

• Executive also helps draft primary statutes with expertise for coherence/effectiveness.

How do branches interact?

mostly through comity (cooperation) but sometimes friction (checks)

What does is the aim of comity for all branches?

All pursue citizen well-being; legislature picks priorities (e.g., via statutes).

What is the role of each branch when comity is working?

Branch	Role in process
Legislature	Sets broad policy (statutes).
Executive	Fills details (regulations), implements.
Courts	Resolves disputes, interprets purpose.

What are the two reasons for why friction happen?

• Prevent error: Branches have weaknesses (e.g., legislature = majoritarian bias; courts = partial info). Friction acts as a brake.

• Division of labor: Each branch focuses on what it's best at ("constitutional myopia")—like an invisible hand where individual efforts combine for overall good.

What are the two forms of friction?

• Block actions (e.g., vetoes, judicial review).

• Combine efforts (e.g., legislature + courts = policy + rights).

What are examples of division of labor?

Perspective	Best Branch	Focus
Collective good	Legislature	Public needs/demand
Local impact	Executive	Effects on groups
Individual fairness	Courts	Impact on specific people

To be a state, what three core capacities are necessary?

• Make law (legislative‑type activity).

• Apply/enforce law (executive‑type activity).

• Adjudicate disputes about law (court‑type activity).

Even “democratic centralism” (single party controls everything),,,,

still need some kind of legislature, courts, and executive.

Why legislatures are necessary for democracy

Without legislatures, state with just executive and courts would….

• It would lack democratic institutions that allow the people to shape policy.

• It fails one of the main democratic demands of the separation of powers

Separation of powers is… and not…

flexible, not rigid

• The principle doesn’t demand one right model (e.g., only presidential or only parliamentary).

• Sometimes these deviations are compensatory: e.g., a very active court may respond to a weak legislature, or a competent executive may try to ignore a corrupt judiciary.

What two kinds of self-defense mechanisms do constitutions create?

1. Negative self‑defense: “shields”

2. Positive self‑defense: “swords”

What is a Positive self‑defense: “swords”

• Powers that let an institution strike back or threaten another branch, even if they’re rarely used. Examples:

  • The legislature controls the purse: it can refuse to fund the executive (or threaten to).

  • In some systems, a lower‑level legislature can repeal or challenge higher‑level legislation that intrudes on its area.

  • In many parliamentary systems, the executive (prime minister) can dissolve the legislature and call an election.

What is a Negative self‑defense: “shields”

• Immunities that protect an institution from interference. Examples:

  • Parliamentary privilege: Legislators can speak freely in debate without being sued for defamation.

  • Judicial independence protections: Courts’ budgets and judges’ salaries are insulated from direct interference by the legislature or executive.

• These prevent one branch from using its normal powers (like cutting funds) to punish or intimidate another.

Why friction is needed?

1. Guarding against error (e.g., courts checking majoritarian laws, executives checking courts that ignore social impact).

2. Division of moral labour (each branch focuses on tasks it is suited to, letting others handle the rest).

What system is resulted by friction?

“invisible hand” system:

• Each institution focuses on what it does best (policy, rights, implementation, fairness).

• The overall outcome is a better‑balanced law and policy than if one body tried to do everything.

What is self-defense needed?

• Limit the damage of that friction/clash between branches

• Prevent one branch from overwhelming another through sheer power.

What does the suitability test ask?

which institution is best placed to exercise a particular power or immunity

Although some features like legislature controlling purse look like violations of separation of powers…

actually built‑in checks required by the principle

Fedarlist 47

1. The objection Madison is answering

• Critics say the new Constitution mixes the branches and violates the rule that legislative, executive, and judicial powers must be separate to protect liberty.

• They think this blending ruins the “symmetry” of the system and risks one part crushing the others.

• Madison agrees the principle (no accumulation of all powers in the same hands) is very important; he just denies that the Constitution actually violates it.

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2. Why combining all powers is tyranny

• If the same person or group holds legislative, executive, and judicial power, that is “the very definition of tyranny.”

• If the Constitution really did that (or came close), Madison says it would be rightly rejected.

• So the real question is: what exactly does “separation” require, and does the Constitution really violate it?

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3. What Montesquieu actually meant

• Everyone quotes Montesquieu as the authority on separation of powers.

• Madison notes that Montesquieu took the British Constitution as his model of liberty.

• But in Britain, the branches are not totally separated: the king is part of the legislature, appoints judges, etc., and the House of Lords has legislative and judicial roles.

• So Montesquieu clearly did not mean that branches must have zero overlap or contact.

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4. True meaning: no complete fusion of powers

• Madison’s reading: Montesquieu meant that the whole power of one department must not be held by the same hands that possess the whole power of another.

• Example: tyranny would exist if:

  • The king (executive) also had full lawmaking and full judicial power, or

  • The whole legislature had full judicial or full executive power.

• But some partial agency or control between branches is allowed and even normal.

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5. Britain and state constitutions as examples

• In Britain, the king can veto laws and appoint judges, and judges advise the legislature, yet this is still treated as a free constitution.

• In U.S. state constitutions, even where they loudly declare separation of powers, in practice no state keeps the branches absolutely separate.

• Example: Massachusetts says each department shall never exercise the powers of the others, but its own constitution allows:

  • Executive veto over legislation,

  • Senate as an impeachment court,

  • Executive appointment and removal of judges,

  • Legislature appointing some officers.

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6. Madison’s bottom line

• The “sacred maxim” of free government is about preventing one body from holding all the power of another, not about banning any overlap or checks.

• The proposed Constitution fits Montesquieu’s real meaning and American practice: branches are distinct in their main powers but partly mixed to allow checks and balances.

• So the charge that the Constitution destroys separation of powers misunderstands both Montesquieu and how American constitutions actually work.

Federalist 48

1. Separation + connection

• It’s not enough for branches just to be separate on paper.

• They must also be connected enough that each has some real, constitutional control over the others.

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2. Paper limits (“parchment barriers”) are too weak

• You can write clear boundaries in a constitution, but words alone won’t stop power from expanding.

• Experience shows these “parchment barriers” are overrated and don’t really protect weaker branches.

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3. Power naturally tries to expand

• Power “is of an encroaching nature” – it tends to push past its limits.

• So you need practical defenses, not just abstract lines, to keep each branch from invading the others.

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4. Legislative branch is the main danger in a republic

• In monarchies, the king (executive) is the big threat.

• In direct democracies, the people’s assembly can be manipulated by an ambitious executive.

• But in a representative republic like the U.S., the legislature is the most dangerous branch:

  • It has broad, hard‑to‑define powers.

  • It feels strong because it claims to speak for the people.

  • It’s big enough to have all the passions of a crowd, but small enough to act effectively on those passions.

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5. Why legislature is especially good at encroaching

• Legislative power is wide and fuzzy at the edges, so it can hide encroachments inside complex, indirect laws.

• It’s often genuinely hard to tell whether a law steps beyond the legislative sphere, which makes overreach easy.

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6. Why executive and judiciary are less of a structural threat

• Executive power is narrower and simpler, with more clearly defined limits.

• Judicial power is even more precisely marked out.

• If either tried to grab more power, it would be obvious and likely fail quickly.

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7. The practical lesson

• To really maintain separation of powers, you must give each branch tools to resist the others.

• In particular, you must design strong checks against the legislature’s tendency to dominate.

Federalist 51

1. Problem: how to keep powers separate in practice

• Just writing separation of powers into a constitution is not enough; “outside” safeguards alone don’t work well.

• You must design the inside structure of government so that the parts of government themselves keep each other in line.

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2. Solution: internal checks and motives

• Each branch must have the constitutional tools and personal motives to resist invasions by the others.

• People running each department should want to defend their own branch’s powers because it aligns with their own interest.

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3. “Ambition must be made to counteract ambition”

• Human ambition is a given, so the design must turn that ambition into a protection for liberty.

• The idea is to pit self‑interest against self‑interest so no one branch can dominate.

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4. Realism about human nature

• If humans were angels, we wouldn’t need government; if angels governed us, we wouldn’t need checks on government.

• But since humans govern humans, you need two things:

  • First, government strong enough to control the governed.

  • Second, government constrained enough to control itself.

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5. Overall point

• The key safeguard for separation of powers is not perfect written rules, but a structure where each branch has both the means and the incentive to check the others.

• That way, the system’s own internal dynamics help keep power divided and preserve liberty.