I'm teaching a midwinter course in Federal Government. I'm thinking aloud how to introduce my students to Federalist 51 and the famous idea that if we can make ambition counter ambition, a government can last a long time.
I have two purposes in this essay. First, I want to introduce you to the logic behind American Constitutionalism. The best way to do that is to get you to think about other ideas about politics and forms of government. “If the logic behind the Constitution was so obvious, why wasn’t it tried for thousands of years?” is a serious question. Second, I want you to think about how we live now and consider carefully how the combination of checks and balances and separation of powers works. Putting you in dialogue with James Madison is a worthwhile goal.
The Federalist Papers by Hamilton (yes, that Hamilton), Madison, and Jay were written to convince New York State to ratify the Constitution. They are op-eds for newspapers. They serve as important points of entry to the various ideas underlying American Constitutionalism. Hamilton very much wants a strong executive; Madison sees private property and freedom as inextricably linked. As you can see, they’re also part of American mythologizing, just as much as Lincoln living in a log cabin or George Washington chopping down a cherry tree. Their existence creates an aura: “our fundamental laws were deliberated publicly, with citizens reading, weighing what was said, and voting.”
The mythologizing can sometimes get in the way of us asking “How do things actually work?” When Madison opens Federalist 51, he has a sharp thesis about how he thinks things should work:
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.
Madison is concerned with a problem that is narrow in one way but has enormous consequences if it is not addressed. How do you prevent one branch of government—the President, the Congress, the Supreme Court—from dominating all the others? How to maintain, in other words, “in practice the necessary partition of power among the several departments?” His answer is that the federal government has to be structured so that each part is “the means of keeping each other in their proper places.”
We’re so used to hearing that you can create a government which is set up to check itself that we do not think twice about it. People from other ages would have questions. They would not necessarily be fans of their king or council of oligarchs or theocrats. But they might ask what exactly U.S. government stood for. If a government is busy fighting itself, how is it supposed to serve the people or advance its values?
That may seem like a laughable question given that the United States has an old constitution and has lasted a good long while. However, it is a question we’re confronting today. Consider the filibuster, which one party in the Senate has used to get the judges it wants and stop the President’s agenda even when the President has plenty of support from the House and the rest of the Senate. Is it good for one part of Congress to completely dominate the other part, stop the President from accomplishing anything they want, and get judges they like? Maybe it is—there is an argument to be made that things could be worse. I do think it’s worth considering that if the government is at war with itself, that doesn’t mean we the people are free. It could mean the faction that’s winning exercises power in radical ways, as if it has the right to do anything to win.
With a little bit of skepticism, then, we should approach the most famous lines of Federalist 51. “Ambition must be made to counteract ambition,” Madison intones, and his thinking is that if “constitutional means” and “personal motives” line up, each part of government will not be swallowed by 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.
As all of you are aware, “personal motives” is the issue we’re confronting today. What if Supreme Court justices appointed by any President answer only to billionaires? And what if Congress has no real incentive to fight their self-proclaimed authority over interpretation of the Constitution? What if people go to Congress not to fight for their constituents, or even to fight against the President or the Supreme Court, but to become highly paid lobbyists or cable news anchors?
It does seem that American government depends on a love of country that isn’t cynical or hateful. It may depend on a love of country free from ambition--one not looking for enemies everywhere--dedicated to serve even the people we don’t like. We note that the Constitution almost didn’t make it 100 years. The Civil War nearly ended the United States. The South, in advancing slavery, had plenty of ambition that had to be counteracted. The Presidency, Congress, and the Supreme Court did fight each other, but the result of that fight was that Americans started fighting each other well before civil war broke out. Older ideas about government emphasized bringing virtuous people into prominence and educating people in leadership, sometimes through experience. No one had any illusions that the best ruler would be a saint. They just wanted to be clear that at some point, someone dedicated to the country itself would have some power.