Politically thinking: Congress, courts must balance president
In 1787 and 1788, Alexander Hamilton, John Jay and James Madison wrote a series of essays known as The Federalist Papers, urging ratification of the new Constitution of the United States.
In the weeks since the election, I have been rereading The Federalist, particularly two of Madison’s most important contributions, Numbers 10 and 51. I am, as I told some friends and colleagues on Nov. 9, willing to suspend judgment on Donald Trump until the spring, to see how he acts once he has actually taken office. However, I have become increasingly concerned over the past month that the American constitutional system is about to be stressed in ways that will put Madison’s intricate design very much to the test.
In Federalist 10, Madison wrote that “men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people.” Madison argued that the expansion of the republic to a continental scale, as was proposed in the new constitution, would be a strong defense against the election of “factious men.” In a large republic there would be “a greater option” of candidates, “and consequently a greater probability of a fit choice.”
Madison was obviously writing before the expansion of print, electronic and social media. The current media environment is arguably highly susceptible to the blandishments of an unsuitable candidate who can obtain election to public office by nefarious means and then betray those whose votes put him or her in office. Indeed, the relative civility of the recent election campaigns in Vermont may demonstrate that, today, smaller political communities are less likely to fall under the sway of candidates who practice, as Madison wrote in Federalist 10, “the vicious arts by which elections are too often carried.”
If the large republic cannot protect society against the election of inappropriate officeholders, the remaining remedy is the one about which Madison wrote in Federalist 51: a structure of government consisting of separated institutions sharing powers. As Madison wrote in that paper, after asking “what is government itself but the greatest of all reflections on human nature,” the government must be obliged to control itself by having ambition counteracting ambition. The “interest of the man” must be “connected with the constitutional rights of the place.” All of the branches of government — House, Senate, president and the courts — must vigorously assert the powers of their office and engage in a checking and balancing struggle. Out of this struggle, and the diversity of interests represented in the large republic, the best long-term results for society as a whole would emerge.
When Madison was writing, the fear was of an overly powerful legislative branch. More than two centuries later, the fear is of an overly powerful executive branch, especially if that branch has extensive powers over how it communicates with other officeholders, and with the public.
Donald Trump approaches power in a personal way, rather than in institutional terms. He sees himself as the ultimate “deal maker.” Trump does not seem to understand the notion of constitutional limits on the presidency. He believes, as he said in his acceptance speech at the Republican Convention, that “I alone can fix it.”
Such an attitude is not consistent with the design of the constitutional system at the time of the founding. Congress and the courts must be willing to challenge that conception of the presidency. A key question for the next four years will be whether the partisanship that now completely dominates Congress, and even has started to creep into the federal courts, will overcome the institutional obligations of the legislative and judicial branches.
Eric L. Davis is professor emeritus of political science at Middlebury College.