The Federalist Papers and Institutional Power in American Political Development

DOI: 10.1057/9781137499608.0001

The Federalist Papers and Institutional Power in American Political Development

Daniel Wirls

THE FEDERALIST PAPERS and institutional power in american political developmentCopyright © Daniel Wirls, 2015.All rights reserved.First published in 2015 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010.Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS.Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world.Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries.ISBN: 978–1–137–49962–2 EPUB ISBN: 978–1–137–49960–8 PDF ISBN: 978–1–137–53327–2 HardbackLibrary of Congress Cataloging-in-Publication Data is available from the Library of Congress.A catalogue record of the book is available from the British Library.First edition: 2015www.palgrave.com/pivotdoi: 10.1057/9781137499608

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Contents

List of Illustrations vi

Acknowledgments vii

1 The Federalist Theory of Institutional Power 1

2 The Separated Institutions Sharing Power: Powers, Organization, and Constituency in The Federalist 18

3 Stability, Change, and Power in the Study of Political Institutions 40

4 Powers, Organization, and Constituency in Early American Political Development 58

5 The Second Republic: The Era of Presidential Power and the Personal Branches 88

6 Conclusion 113

Bibliography 120

Index 129

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List of Illustrations

Figures

1.1 The Federalist’s theory of institutional power 53.1 Origins and patterns of changes in institutional

power 495.1 Growth in congressional organizational support

(House personal and committee staff) 1005.2 Cases filed in the Supreme Court, 1938–1975 1065.3 Economic regulations and civil liberties

restrictions overturned by the Supreme Court 106

Tables

1.1 The Federalist’s institutional matrix 44.1 Original and developmental examples of powers,

organization, and constituency 604.2 Major categories of developmental changes in

powers, organization, and constituency 615.1 After FDR: new sources of presidential power 90

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Acknowledgments

The idea for this book took shape over the many years I have taught Politics 120A: Congress, the President, and Court in American Political Development at the University of California, Santa Cruz. This course, a political history of the three branches and their interactions, remains somewhat unusual. Most advanced courses in American politics focus on one branch or the other and not so much from a systematically historical or developmental perspec-tive. Like many of my colleagues teaching courses on American political institutions I would include a number of the papers from The Federalist, which served their some-what obligatory and circumscribed purpose of elucidating the system wrought by the founders, a baseline against which to assess change. Over the years, however, I began to see in the papers greater theoretical coherence and potential than I had imagined. Instead of my discussing and dropping the papers at the start of the course, their implicit theory—that institutional power is determined by powers, organization, and constituency—became the conceptual framework for understanding the relationships between and among the institutions from the founding till today. I thank the thousands of students who have taken the course for their forbearance and inspiration.

The argument first took shape as a lengthy paper presented at the 2011 Northeastern Political Science Association Annual Meeting in Philadelphia. Many colleagues read the original or subsequent versions, and several provided, above and beyond the call of duty, exten-sive and astute comments. Some contributed valuable

viii

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Acknowledgments

answers to specific questions. In alphabetical order I thank Thomas Baldino, Richard Bensel, George Conyne, Kent Eaton, Paul Frymer, Scott James, Adam Sheingate, Richard Valelly, and Stephen Wirls. The research for this book, for better or worse, was entirely a product of my efforts. I would like to thank the Roy Rosenzweig Center for History and New Media for the production of their Zotero bibliographic software, which has become indispensable in all my scholarly endeavors.

This book has its deepest roots in my experiences as a graduate student in the mid-1980s in Cornell University’s Department of Government, which was already known for pioneering work in the emerging field of American Political Development, and especially in the words and wisdom of one of its professors. Consequently, I dedicate this work to Benjamin Ginsberg—who remains a formidable idea machine, wide-ranging scholar, and generous colleague—and to the other model teachers and scholars then at Cornell, including Theodore Lowi, Martin Shefter, Richard Ned Lebow, and Peter Katzenstein, who had a major influence on my intellectual development.

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1The Federalist Theory of Institutional Power

Abstract: The Federalist contains a heretofore unrecognized theory of institutional power. In the papers each institution is characterized by its (1) powers, as in constitutional authority and duties, (2) organization, as in structure, size, procedures, and other internal resources, (3) constituency, as in external social support, and (4) relationship among the three elements or variables. The distribution of power among the branches is a function of the relative nature of each institution’s powers, organization, and constituency. This chapter introduces this argument and reviews the relevant literature from the scholars of the papers and American Political Development (APD).

Wirls, Daniel. The Federalist Papers and Institutional Power in American Political Development. New York: Palgrave Macmillan, 2015. doi: 10.1057/9781137499608.0004.

2 The Federalist Papers and Institutional Power

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“The constitutional convention of 1787 is supposed to have created a government of ‘separated powers,’ ” wrote Richard Neustadt in 1960. But, he famously concluded, “It did nothing of the sort. Rather, it created a government of separated institutions sharing powers.”1 Neustadt can be criticized for going too far in the other direction, producing his own oversimplification to make an important point. That is, the delegates at the Constitutional Convention, and the authors of The Federalist, conceived of these as largely separate powers—legislative, executive, and judicial—in separate branches while acknowledging that the boundaries were not always precise.2 Neustadt’s renowned aphorism is also a bit misleading insofar as the equally famous book from which it is drawn, Presidential Power, is about just that, presidential influence, not sharing powers, as in constitutional or legal authority. As Neustadt makes clear a few pages later, “The probabilities of power do not derive from the literary theory of the Constitution.”3 Indeed, the implementation and evolution of the Convention’s handiwork quickly put an emphasis on the sharing of powers or, as we shall see, power more generally.

Whether directly or indirectly much of the study of politics is about the relationship between constitutional or legal authority—Neustadt’s literary theory—and actual influence, his probabilities of power. Legal authority is about who or what is authorized to act and in what way by a constitution, laws, or other rules and procedures. Actual influence is about how much control persons or organizations have over the matter at hand regardless of what seems to be the distribution and nature of authority. In politics the focus is often on what comprises institutional power. Such that in some cases the presidency might seem more power-ful than the Constitution might allow. Or that Congress seems less capable than it should be. Or that the Court’s power fluctuated dramati-cally across some period of time. This distinction is sometimes referred to as the difference or relationship between powers and power, and it is at the core of studies of everything from the behavior of local police to the impact of international law. As far as the US Constitution and its institutional creations, considerable ink has been spilled, at least from Neustadt onward, in the quest for understanding the power of the sepa-rated institutions—along with the states—sharing powers and power.

The first American political scientists—the authors of The Federalist—certainly had a deep appreciation of political power, for the complex characteristics of the American political system as structured by the Constitution they were defending and for the interactions between and


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among its central institutions. That much we know. Their elaboration of the system of separated powers and checks and balances is one of the notable contributions of the work to political science. A considerable body of scholarship has explored and probed in various ways and for various purposes the papers’ treatment of these matters. And in a nearly obligatory and sometimes pro forma fashion we—political scientists, politicians, and pundits alike—rely on the papers for our summations and elaborations of this system, often letting Publius’ famous phrases more or less speak for themselves.

Despite the scholarship on this part of the papers and the regular invo-cation of its often epigrammatic phraseology, what has been drawn from The Federalist is typically a general portrait of the constitutional system as a rough balancing act of institutional powers and other interinstitutional checks—such as the great legislative power balanced by the veto, or the division of the legislature itself—without, I will argue, sufficient atten-tion being paid to the conceptual coherence and theoretical implications of the papers’ serialized treatment of both the separation of powers and the specific governmental institutions. Overlooked is an implicit model or theory of institutional power that transcends the specific explanation of how the constitutional system was intended to work.

The Federalist’s ad hoc defense lays the foundation for a more general theory of institutional power within political systems, one based on the relationship of key variables at the center of separated institutions sharing powers. The central elements and relationships in the theory are woven through the papers albeit in a largely implicit fashion. The Federalist has been taken to task for a lack of philosophical rigor or coherence compared to other canonical works of political thought, and nowhere in the papers does Publius, whether in the voice of Madison or Hamilton, provide a theoretical summation of “his” thinking about the separation of powers let alone institutional power more generally.4 Even so, the papers discuss Congress, the executive, and judiciary in comparable terms. Each institution is characterized by its (1) powers, as in constitutional authority and duties, (2) organization, as in structure, size, procedures, and other internal resources, (3) constituency, as in external social support, and (4) relationship among the three elements or variables. The distribution of power among the branches is a function of the relative nature of each institution’s powers, organization, and constituency.5 The relationships—the careful arrangement of the trio of elements—are in Publius’ view the key to constitutional stability, but in addition much of the ebb and flow


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of American constitutionalism and the power of each of the branches of government over time can be elucidated by the theoretical implications of the papers’ underlying logic.

The picture of the branches that emerges from The Federalist can be summarized in the matrix of Table 1.1. The individual components of the matrix are familiar, even if the explicit division by powers, organization, and constituency is less so. It is not just the formal constitutional powers and the explicit checks and balances that structure the system. These are intrinsically linked to the organizational strengths and potential weak-nesses (or virtues and vulnerabilities) of each branch, which in turn are related to public opinion and social forces. In discussions of the papers these three elements are typically not specified as general variables and, insofar as they are recognized, are more often separated than united, or linked only for a brief comparison or two drawn from Madison’s examples and logic in no. 51. Instead we need to see these elements as an integrated system that explains institutional power in a political system, as represented in Figure 1.1.

Even if Publius does not identify the trio, and indeed never puts a term or applies a label to either organization or constituency as categories, he discusses each separately and in juxtaposition throughout the papers. Each of the three—powers, organization, and constituency—is a central component of institutional power with independent effects (represented by the arrows from each directly to institutional power). But the impact of each, and the overall effect on institutional power, must be seen in the interrelationships between and among them (represented by the arrows between each element).

The relationships of the three variables both within each institu-tion and across them comprise a model—one evident in The Federalist

table 1.1 The Federalist’s institutional matrix

PowersOrganization(and Principle of Action) Constituency

Congress Positive/Broad Large and Divided Mixed: popular and corporate

House Positive/Broad Large (for Representation) Popular/BroadSenate Positive/Broad Small (for Deliberation) Corporate/HybridPresident Reactive/Negative/

ContingentUnitary (for Decision and Efficiency)

Indirect

Court Reactive/Negative Insulated and Small (for Monastic Judgment)

None/Detached


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as a whole—of the separation of powers and checks and balances, a model from which a more general theory of institutional power can be constructed. Power, for purposes of this work, is the ability to get others to do what they would otherwise not or be unlikely to do, or to hinder or prevent others from doing what they would otherwise try to do, and more generally being influential rather than influenced. What do I mean by institutional power? Institutional power is an assessment or measure of an institution’s overall ability to influence the system within which it operates, relative to the other systemic institutions with some authority and relative to its degree of power across time. That is, insti-tutional power is relational, both cross-sectionally in comparison to the other institutions and longitudinally in comparison to its own power at different points in time. In the case of a governmental system, influence is measured primarily by the impact on policy outcomes, be it in the form of initiation, amendment, or veto. For example, the organizational advantages provided by the combination of party and the committee system helped make Congress the dominant branch of government for most of the nineteenth century relative to the president and the Court, something I will discuss in Chapter 4, which applies the Federalist model to early American political development. Likewise, the twentieth century witnessed the substantial increase in presidential power as a result of the New Deal and World War II, through which the executive became a far

InstitutionalPower

Powers(Constitutional duties and

authority)

Constituency(Social or external support,allies or active opposition)

Organization(Structure, size, procedures,

other internal resources)

figure 1.1 The Federalist’s theory of institutional power


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more powerful institution than it had been. Having become the domi-nant actor in the system relative to the other branches, the presidency set an agenda to which others had to react and could take actions the other branches could or would not impede. This definition of institutional power is related to but more specific than the often more general formu-lations from institutional theory and the study of American Political Development (APD) about institutional effects, durability, and change, which I will discuss in Chapter 3.

As the framers constructed the Constitution through deliberation and bargaining, they were drawing upon and significantly revising exist-ing notions of the separation of powers, borrowing innovations from state constitutions and practice, and creating new ideas that combined institutional independence and interdependence. In the attempt to explain and justify what the Convention had wrought, the combina-tion of familiar features and architectural novelties packaged up in Philadelphia, The Federalist uses around 200,000 words to explicate the 4,400 or so words of the proposed constitution. The combination of just Federalist no. 10 and no. 51 is longer than the document their famous arguments elucidate. Given the urgency and rapidity with which the papers were written, the authors managed to publish them in a highly organized fashion. In logical order the papers cover the importance of union (1–14), the defects of the Articles of Confederation (15–22), justi-fications for the general powers of the proposed government (23–36), explication of the republican form of government, including federalism and the separation of powers (37–51), the legislative branch (52–66), the executive (66–77), the judiciary (78–83), and miscellaneous items and conclusions (84–85). Nevertheless, amid the withering detail that ranges across history, contemporaneous comparisons, and human psychology, and seems to leave no argument unexplored, it is easy to lose the forest for the trees. One of the overarching points, and the one I think has not been recognized by scholars of the papers, is the way in which The Federalist’s description and explanation of the system of separated insti-tutions sharing power adumbrates the elements of a coherent theory of institutional power.

Lauded since its first publication by scholars and politicians alike as the most cogent explication and defense of the US Constitution, The Federalist’s reputation as a “uniquely authoritative commentary on the Constitution”6 often overshadows its status as a work of political theory. Its fame and importance stem as much or more from its status


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as a historical and political document than as an addition to the canon of Western thought. Written “at white hot speed” as a “partisan tract” for a political campaign The Federalist is “not a systematic treatise on political theory.”7 Its multiple authorship, assembly line production, and intensely practical purpose, have invited this kind of criticism even as the papers are lauded for their various contributions.8 This tension is often expressed in summations by scholars and others. While praising it as “the best commentary on the principles of government which ever was written,” Thomas Jefferson added that in comparison to Locke’s Two Treatises on Government, “Descending from theory to practice there is no better book than the Federalist.”9 Over a century and a half later, Clinton Rossiter deemed The Federalist “the most important work in political science that has ever been written, or is likely ever to be written, in the United States. It is, indeed, the one product of the American mind that is rightly counted among the classics of political theory.”10 Even as he urges the reader to overlook the “uneven quality and omissions” of the essays, Rossiter claims the papers contribute to political theory “only by accident” and regrets that the authors were not able to lay out in “orderly and complete” fashion the underlying theory on several issues.

Yet, as some have argued, its theoretical contributions are significant despite being easily dismissed or overlooked because of the papers’ prac-tical and propagandist purpose and exposition. The Federalist, Martin Diamond points out, “falls short of those great works in which theoreti-cal matters are pressed to their proper, that is, farthest limits” because its authors are able to stay at a more pragmatic level to counter the critics and defend the proposed plan. Even so, Diamond argues, “Hamilton and Madison go very far, as Publius, in suggesting the theoretical grounds upon which a wise acceptance of the Constitution should rest.”11 Among these insights is the complete and cogent explication of the modern republican form of government and its harmonization with a liberal society, or the “republican form . . . reconciled with liberal ends.”12 No small part of this liberal-republican synthesis is the work’s sophisticated perspective on the basis and role of interest-based conflict or factional politics. The defense of the “extended” and “compound” republic is another central contribution. As Rossiter argues, it is “[a]s an explanation of the federal form of government The Federalist comes closest to being an original piece of work.”13 Likewise, the work is the locus classicus for the aphoristic analysis of the modern system of separated institutions sharing power. Overall, The Federalist is peerless in the Western canon in


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its detailed focus on the role of institutions in politics.14 Even so, studies of this aspect of the papers have focused more on the pieces of institu-tional insight, as far as federalism or the separate branches, and tend not to see an integrated whole, a theoretical basis of institutional power.

I will argue that the “theoretical grounds” to which Diamond alludes include a multifaceted account of institutional power emerging from the practical defense of the Constitution. The voluminous literature on the papers gives expression to or recognizes the Federalist perspective on institutional power—the relationships between and among powers, organization, and constituency—only partially or indirectly. This assessment is based on a close review of over 100 books, chapters, and articles that focus on or use one or more papers from The Federalist as an important element in their analysis.15 This applies to works attempting to characterize the papers as a whole,16 more focused examinations of Publius’ discussion of the separation of powers and checks and balances often centered on no. 51,17 as well as studies that discuss other particular topics such as the role in the papers of public opinion, representation, or public virtue.18 In addressing some argument in the papers, an author might relate a particular facet of constituency to powers or organization, and so forth, but the three are not named or juxtaposed systematically or theorized as interrelated variables. Even an entire volume on the rela-tionship between The Federalist and the new institutionalism, from the rational choice perspective, applies rational choice theory to the logic of papers rather than searching for what Publius might have contributed to institutional theory.19 More detailed examples will be used in Chapter 2 to demonstrate the ways in which the literature gives at best partial or incomplete recognition to the variables and their relationships, in partic-ular, what I call the conceptual “hand-waving” and “hand-wringing” that has accompanied much of the analysis of the argument in and around no. 51.

If the literature on The Federalist does not name and explicate this set of relationships as a model or theory, studies of APD rarely draw upon The Federalist as either institutional analysis or as a template against which to assess political development, even though it is a canonical work on the relationship between political institutions and power, a central concern of historical institutionalism. For example, in their book-length treatment of the concept of APD, Karen Orren and Stephen Skowronek quickly cite no. 10 and mention the papers more generally just once and briefly, but not in any way as part of or relevant to the theoretical


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development of their argument about order and change.20 Other analytic summations of and review essays about APD do not mention the papers or link the field to them.21 This seems to be the case with institutional theory more generally as well.22

When Publius is cited in such work the emphasis is on the papers’ argument about institutional stability. For example, in discussing concepts of change in historical institutionalism, one summary invokes Publius only to dismiss him:

The Federalist (#51) argued that the internal pressures from each of the branches would keep their relationship to one another stable . . . This claim was far too simple, but even if it were true, we would still witness change as the various branches developed over time, following their own logics, explaining, for example, why the relationship between the president and Congress is constantly changing.23

As we will see, this reading of no. 51 is reasonable and the dominant view but incomplete as far as the papers as a whole. Moreover, what-ever the alleged simplicities of Publius’ argument, what do we learn by ascribing inevitable institutional change to something as vague as the inner logics of institutions? Or, if there is an inner logic, of what is it comprised?

The critique of The Federalist as a flawed argument about stability, and the reason for the disconnect between the papers and APD, goes all the way back to Woodrow Wilson. Wilson, among America’s earliest profes-sional political scientists, accused the founders and Publius of having a Newtonian view of politics, in which the institutional planets would be kept in their respective orbits by the force of constitutional separations and checks.24 Wilson understandably comprehended the framers as having produced what they thought would be a relatively static system with the separations and checks, including federalism, acting to stabilize power. Wilson, by contrast, saw things as Darwinian with evolutionary forces altering what the founders had attempted to fix in space and time. We will revisit Wilson’s Darwinian alternative to Newton in Chapter 3 when I show how the Federalist theory accommodates and explains change. Whatever the merit of Wilson’s observation, for now the point is that it came to reflect what seems to be the attitude of much of modern political science to the papers—that The Federalist is more valuable for its description and justification of what the Constitutional Convention produced than for what the papers might tell us about how that system could change and evolve.25 Or, that the various papers comprise at best


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a template or baseline of original expectations about the strengths and weaknesses of the institutions against which their evolution or develop-ment can be assessed and contrasted, such as the growth of presidential or judicial power. Some scholars, understandably enough, curtail the analytic potential of the papers from the other direction by arguing that The Federalist cannot be treated as a reliable lens on why the delegates in Philadelphia made the decisions they did. Post-facto justifications might not equal the ideas and interests behind the decisions.26

That said, just as Federalist scholarship might focus on the role of public opinion in the papers, or the importance of organizational elements, without conceptualizing them as variables, the historical study of American politics is replete with arguments about institutional power, many of which make implicit or more or less direct use of some combination of powers, organization, and constituency in their analysis, even if most focus on one branch and make no broader claims about how power shifts across institutions and time.

The study of Congress, the president, and judiciary features many works that at least implicate institutional power and invoke, however indirectly, the elements of Publius’ theory, starting with one of the semi-nal works in APD, James S. Young’s, The Washington Community. Young’s study, focusing on the behavioral consequences of the “community plan,” details the nature and consequences of the initial organization and constituent relations for the separation of powers and particularly for the power of Congress and the presidency.27 In another classic from the 1960s, Nelson Polsby looks at various facets of organization in his examination of the institutionalization of the House of Representatives.28 In the substantial literature on the historical development of the presi-dency, democratization of the office (constituency) is of course a major theme along with bureaucratization (organization) and the expansion of powers. Stephen Skowronek’s “political time” emphasizes, in effect, the president’s relationship to constituency via cycles in the party system, while Theodore Lowi and Sidney Milkis accentuate the more perma-nent revolution in president-constituent relations represented in the “personal” and “administrative” president in the era following Franklin D. Roosevelt (FDR). Jeffrey Tulis’ rhetorical presidency is another example linking constituency and organization to executive power.29 In his discus-sion of the two constitutional presidencies, Tulis constructs a table that illustrates “the purposes behind the separation of powers.” In so doing, he lists what he calls “structures and means” that parallel some of what


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I list as “organization” and “powers.” But he does not include constitu-ency and he does not address institutional power per se.30 Likewise the judiciary has been subject to this kind of developmental analysis with a strong emphasis on the expanding power of judicial review and shifting constituencies, as social support for Court power waxes and wanes.31 Studies of bureaucratic power, such as Daniel Carpenter’s formulation of bureaucratic autonomy, have drawn on one or more of the three vari-ables.32 As part of his reminder that an “important but much neglected concern in the study of the Constitution is its effect on the development of the American political system,” Peter Nardulli discusses the relation-ship of all three branches to the “policy marketplace” in terms of “selec-tion procedures, interinstitutional checks, and value commitments,” thereby invoking aspects of constituency, organization, and powers.33 In short, numerous scholars of American politics and especially APD make one or more of these three variables a central element in their discussion of institutional power and change, but none draws upon or connects to The Federalist and they do not attempt to link all three or draw larger theoretical conclusions about their relationships.

Even if it does not cite Publius, one work—another early model for APD studies—uses the equivalent of the three variables and the logic of their interrelationships in much the same fashion as does the papers. At about the same time that Richard Neustadt was revising our understand-ing of presidential power in the wake of FDR, Truman, and Eisenhower, Samuel Huntington, his colleague at Columbia and Harvard, was analyzing the state of congressional power in the shadow of the postwar presidency. Neustadt looked beyond the “literary theory” to find the “probabilities of power” in the president’s ability to persuade the public and Congress, but did not link his descriptive account to any explicit set of variables regarding presidential power. By contrast, Huntington’s influential assessment of Congress and its loss of power did. Huntington’s analysis of Congress’s mid-century “adaptation crisis” concentrates on how changes in congressional “functions,” “structure,” and “affiliations” entailed bleak consequences for its power. Huntington’s trio closely parallels powers, organization, and constituency even if he does not relate this to The Federalist or generalize its applicability.34 In his view congressional power declined as it became insulated from the dynamic social forces, or potential affiliations, of the twentieth century (social forces happily represented by the executive branch). This both caused and was in turn reinforced by congressional structures or organization


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that stagnated in a dispersed form of power organized around seniority and the committee system. Finally, with weak and parochial constituen-cies, and a lack of effective organization, Congress altered the use of its authority or powers in the direction of oversight rather than legislative initiative. As does Publius, Huntington emphasizes the importance of constituency and organization, his affiliations and structure, in shaping the crisis and therefore institutional power.35 While citing other American and comparative examples of institutional adaptation crises, Huntington does not formulate the relationships among affiliations, structure, and function as a more general theory of institutional power even though it has all the hallmarks of being just that.

Because we have tended to miss the forest for the trees, we have likewise missed some of the theoretical implications that emerge from The Federalist’s overarching mission to restrict or channel power. The by-product of Publius’ clear goal of controlling or managing power in general— including the danger of factions both in society and in government—is a theory of institutional power at the center of the over-arching republican project. From the explicit process of accomplishing the former (managing power) emerges the implicit latter (a theory of institutional power). That said, my argument is not that The Federalist provides or implies a comprehensive theory of institutional power—such a thing does not exist regardless. As we will see in Chapter 3, institutional theory from sociology and political science provides many insights into the elements and conditions of institutional power, but not a master theory. The Federalist theory is another way of looking at institutional power and provides the variables and relationships to make sense of important aspects of political change from the founding to today. Between the vagaries of agency at the level of individuals and exogenous events and forces, what factors comprise stability and change in institutional power? Yes, political entrepreneurs can be powerful and disruptive agents. And events and crises perhaps even more so. But what exactly, as far as institutional power, do such things cause or contrib-ute to? How are the impacts of agents and events transmitted through institutions? While not accounting for everything, the ebb and flow of powers, organization, and constituency within and across institutions within a given political system provides comparative insight missed by some other perspectives.

This gives The Federalist greater coherence and enlarges its contribu-tion to liberal-republican political thought. It integrates the ideas of


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representation and separation of powers that are often separated in analyses of the papers that often treat the logic in and around no. 10 as one thing and no. 51 as another, even though the latter paper repeats the core of the former as part of its argument. This way of looking at the papers better integrates what are often seen as the liberal and republi-can parts of the argument, and in so doing the relationships between and among powers, organization, and constituency create a liberal-republican theory of institutional power unlike anything that preceded it in Western political thought. In turn, recognition of this contribution could also reintegrate the urtext of the founding with institutional stud-ies in APD.

Consequently, this monograph is organized around three goals. The first purpose is to explicate the model of institutional power presented in the papers of The Federalist and show how that model brings greater coherence to the work and clarifies its contribution to political theory. The second is to show that the Federalist trio of powers, organization, and constituency, though far from being a comprehensive theory of institutional power, offers a set of variables and relationships that is more conceptually precise and empirically grounded than some of alternative theories and models from institutional theory and APD. The Federalist theory elucidates changes in institutional power in a manner that complements and often brings greater coherence and comparability to other accounts, particularly those focused on one institution. The final purpose is to illustrate the theory’s utility as a conceptual framework for understanding relative shifts over time in institutional power between and among the branches. I do this by applying the framework to two eras in American political development, the early period of politics and government under the Constitution through the mid-nineteenth century and the modern era from FDR onward.

Notes

Richard E. Neustadt, 1 Presidential Power : The Politics of Leadership from FDR to Carter (New York: Wiley, 1980), 26 [emphasis in the original].As we shall see, for example, 2 The Federalist’s discussion of “partial agency” in nos. 47 and 48 is about the dangers of legislative powers and how limited and carefully defined features, such as the veto, would help check the potentially dangerous legislative authority, rather than allow the president to steer the


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law-making process. The potential reach of judicial powers might have been unclear but the founders saw it as a distinct and limited authority.Neustadt, 3 Presidential Power, 33 [emphasis in the original].While this essay sees the theory of institutional power as a coherent theme 4 across the papers, my use of “Publius” is an editorial convenience rather than an implicit commentary on the debate about the unity of the papers, although I am sympathetic to George W. Carey’s explanation for his use of Publius; see George Carey, The Federalist : Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989), xxix–xxx. In addition, The Federalist has fueled many politically tinged debates about its political implications, going at least as far back as Charles Beard and continuing into recent scholarship. Just as my use of Publius implies nothing about my scholarly orientation, elucidation of the theory of institutional power has no direct bearing on debates about the ideological commitments and legacies of The Federalist.In one of his lectures on “American Government” at Cornell, Benjamin 5 Ginsberg would attribute institutional power to its constituency and organization. Although he never linked this insight to The Federalist or integrated the two variables with formal powers, I thank him (and not for the first time) for planting a seed that took a while to germinate.Clinton Rossiter, “Introduction,” in 6 The Federalist Papers, by James Madison, Alexander Hamilton, and John Jay, ed. Clinton Rossiter (New York: New American Library, 1961), xiii.Terence Ball, ed., “Introduction,” in 7 The Federalist, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 2003), xi, xiv. As Ball also argues, “As a work of political theory, then, The Federalist flies fairly close to the ground, rarely soaring into the stratosphere of philosophical abstraction” (xvii).Along with the detective work on the actual authorship of each paper, scholars 8 debate whether Publius can be treated as a single author, e.g., Douglass Adair, “The Authorship of the Disputed Federalist Papers,” The William and Mary Quarterly 1, nos. 2 and 3 (July 1944): 97–122; 235–64; Alpheus Thomas Mason, “The Federalist—A Split Personality,” The American Historical Review 57, no. 3 (April 1, 1952): 625–43; George W. Carey, “Publius: A Split Personality?,” The Review of Politics 46, no. 1 (January 1, 1984): 5–22; Albert Furtwangler, The Authority of Publius: A Reading of the Federalist Papers (Ithaca, NY: Cornell University Press, 1984); Martin Diamond, “The Federalist,” in History of Political Philosophy, ed. Strauss and Joseph Cropsey (Chicago: Rand McNally, 1963), 574; Martin Diamond notes that some have criticized the consistency of The Federalist because of its multiple authorship and the fact that Madison and Hamilton were only temporary allies who had disagreed at the convention about important issues. Diamond sees this as a mistaken view or one that unnecessarily diminishes the remarkable consistency in the argument; Clinton Rossiter makes a similar point: Rossiter, “Introduction,” xv.


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Ball, “Introduction,” xiii.9 Rossiter, “Introduction,” vii.10 Diamond, “The Federalist,” 574.11 David F. Epstein, 12 The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984), 6.Rossiter, “Introduction,” xii.13 Montesquieu’s 14 The Spirit of the Laws, cited by The Federalist, has a strong institutional emphasis, but covers much else as well. On The Federalist’s singular institutional focus, see Thomas Schwartz, “Publius and Public Choice,” in The Federalist Papers and the New Institutionalism, ed. Bernard Grofman and Donald Wittman (New York: Agathon Press, 1989), 31–35.As there is no separate bibliography of these works printed in this 15 monograph, the list is available from the author on request. I cite in this chapter and those that follow only a handful of the articles, chapters, and books read as part of the research for this work.Diamond, “The Federalist”; Furtwangler, 16 The Authority of Publius; Vincent Ostrom, The Political Theory of a Compound Republic: Designing the American Experiment, 2nd ed. (Lincoln: University of Nebraska Press, 1987); Gary Wills, Explaining America: The Federalist (Garden City, NY: Doubleday, 1981); Epstein, The Political Theory of the Federalist; Morton White, Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987); Carey, The Federalist; Philip Abbott, “What’s New in the Federalist Papers?,” Political Research Quarterly 49, no. 3 (1996): 525–45.Joseph F. Kobylka and Bradley Kent Carter, “Madison, ‘The Federalist’, and 17 the Constitutional Order: Human Nature and Institutional Structure,” Polity 20, no. 2 (1987): 190–208; William Kristol, “The Problem of the Separation of Powers: Federalist 47–51,” in Charles Kesler, Ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987), 100–130; John Ferejohn, “Madisonian Separation of Powers,” in Samuel Kernell, Ed., James Madison: The Theory and Practice of Republican Government (Stanford, CA: Stanford University Press, 2003), 126–55.A few examples: Francis G. Wilson, “The Federalist on Public Opinion,” 18 The Public Opinion Quarterly 6, no. 4 (1942): 563–75; Jean Yarbrough, “Thoughts on the Federalist’s View of Representation,” Polity 12, no. 1 (1979): 65–82; Michael P. Zuckert, “The Virtuous Polity, the Accountable Polity: Liberty and Responsibility in ‘The Federalist,’ ” Publius 22, no. 1 (1992): 123–42; Jason Frank, “Publius and Political Imagination,” Political Theory 37, no. 1 (2009): 69–98.Bernard Grofman and Donald Wittman, eds., 19 The Federalist Papers and the New Institutionalism, Series on Representation, vol. 2 (New York: Agathon Press, 1989).


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Karen Orren and Stephen Skowronek, 20 The Search for American Political Development (New York: Cambridge University Press, 2004).Adam Sheingate, “Institutional Dynamics and American Political 21 Development,” Annual Review of Political Science 17, no. 1 (May 11, 2014): 461–77; George Thomas, “What Is Political Development? A Constitutional Perspective,” The Review of Politics 73, no. 2 (2011): 275–94. Thomas mentions The Federalist only to lament the fact that APD seems divorced from relevant political theory (288).For examples, see B. Guy Peters, 22 Institutional Theory in Political Science: The “New Institutionalism,” 2nd ed (New York: Continuum, 2005); W. Richard Scott, Institutions and Organizations: Ideas, Interests, and Identities, 4th ed. (Los Angeles: SAGE, 2014). Scott, for example, lauds Tocqueville as an early institutional theorist while not mentioning Publius.Brian J. Glenn, “The Two Schools of American Political Development,” 23 Political Studies Review 2, no. 2 (April 2004): 154.Woodrow Wilson, 24 Constitutional Government in the United States (New York: Columbia University Press, 1908 [1961]): 56.The major exception to this revolves around 25 Federalist no.10 and its famous argument about controlling factions. Its argument has launched a thousand ships related to pluralism, political participation, federalism, and other issues related to how and in what ways the American system has evolved or operates.David Brian Robertson, 26 The Constitution and America’s Destiny (New York: Cambridge University Press, 2005), 22–23, is a recent example.James S. Young, 27 The Washington Community, 1800–1828 (New York: Columbia University Press, 1966).Nelson W. Polsby, “The Institutionalization of the U.S. House of 28 Representatives,” American Political Science Review 62, no. 1 (1968): 144–68.Stephen Skowronek, 29 The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, MA; London: The Belknap Press of Harvard University Press, 1993); Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca: Cornell University Press, 1985); Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System Since the New Deal (New York: Oxford University Press, 1993); Jeffrey Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987).Jeffrey Tulis, “The Two Constitutional Presidencies,” in 30 The Presidency in the Political System, ed. Michael Nelson (Washington, DC: Congressional Quarterly Press, 2000), 104.Robert McCloskey, 31 The American Supreme Court (Chicago: University of Chicago Press, 1960); Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as National Policy-Maker,” Journal of Public Law 6 (1957):


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279–95; Richard Funston, “The Supreme Court and Critical Elections,” American Political Science Review 69 (1975): 795–811; Jonathan D. Casper, “The Supreme Court and National Policy-Making,” American Political Science Review 70 (1976): 50–63; John B. Gates, The Supreme Court and Partisan Realignment (Boulder, CO: Westview Press, 1992); Keith Whittington, Political Foundations of Judicial Supremacy (Princeton, NJ: Princeton University Press, 2007); Barry Friedman, The Will of the People (New York: Farrar, Straus, and Giroux, 2009).Daniel P. Carpenter, 32 The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, NJ: Princeton University Press, 2001). Carpenter ascribes institutional autonomy to a combination of social ties or networks and organizational capacity.Peter F. Nardulli, “The Constitution and American Politics: A Developmental 33 Perspective,” in The Constitution and American Political Development: An Institutional Perspective, ed. Peter F. Nardulli (Urbana: University of Illinois Press, 1992), 3–31.Samuel P. Huntington, “Congressional Responses to the Twentieth Century,” 34 in The Congress and America’s Future, ed. David B. Truman (Englewood Cliffs, NJ: Prentice-Hall, 1973), 6–38.Huntington does not cite 35 The Federalist in this work, but in another book credits Madison (presumably in the form of Publius) as recognizing the primary importance of popular support in determining institutional power in a republic. Samuel P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968), 129.

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2The Separated Institutions Sharing Power: Powers, Organization, and Constituency in The Federalist

Abstract: This chapter provides a close reading of The Federalist to show how powers, organization, and constituency are interrelated throughout the papers. This chapter begins with the ways scholars have interpreted Federalist no. 51’s arguments about the separation of powers and checks and balances, and then shows how the three variables bring greater clarity and consistency to the argument in no. 51 and the subsequent papers covering Congress, the presidency, and the judiciary.

Wirls, Daniel. The Federalist Papers and Institutional Power in American Political Development. New York: Palgrave Macmillan, 2015. doi: 10.1057/9781137499608.0005.

19The Separated Institutions Sharing Power

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How does The Federalist, as part of its practical defense of the proposed constitution, provide a theoretical foundation for understanding institutional power and change? This chapter explicates the three variables—powers, organization, and constituency—and the interrela-tionships as they are at work in The Federalist. It begins with the problem of interpreting Federalist no. 51 to show how the system of institutional relationships—the separation of powers and the checks and balances—is incomplete without reference to the three variables and their relation-ships. I then show how powers, organization, and constituency take shape in the papers as a whole, especially those following no. 51 that focus, in turn, on the House, Senate, executive, and judiciary. The rela-tionship between the separation of powers and checks and balances is at the core of the framers’ and The Federalist’s conception of institutional power. But just because the framers intended the three branches to be balanced in the sense of stable in their relative power, that does not mean things could or would not change, and those changes would come from or be registered principally through shifts in powers, organization, and constituency. Consequently, the Federalist model of the system of separations and balances is an implicit theory of institutional power and change as we shall see at the end of the chapter.

The separated powers and checks and balances: interpreting Federalist no. 51

As noted in Chapter 1, the relationship of the three variables both within each institution and across them comprises a model—one evident in The Federalist as a whole—of the separation of powers and checks and balances. However familiar to most readers, it is important to clarify what we mean by the distinction between “separation of powers” and “checks and balances.” The separation of powers is the division of governmental labor and functions—the legislative, executive, and judi-cial powers—between and among the branches. Checks and balances are the various inter- and intrainstitutional elements that allow one branch to affect another’s use of its powers or that affect a branch’s ability to use its own powers.

The famous no. 51 is as close as we get to a statement by Publius about the nature of the balancing act at the heart of the system of separations, balances, checks, a statement in which the three elements, however


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implicitly, are brought together at the same place and time. Even here—and precision in this regard was hardly necessary for his purposes—Publius is inexact about the nature of the factors being balanced against one another. This ambiguity begins with “the necessity of auxiliary precautions,” beyond a dependence on the people, to control the govern-ment. The auxiliary precautions, which he refers to also as “inventions of prudence,” are what give life to the “policy of supplying, by opposite and rival interests, the defect of better motives,” thereby “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others” (51: 349).1 Constitutional means are primarily powers, including the veto, impeach-ment, appointments, treaties, and judicial review. But the “personal motives” side of the equation can be puzzling unless one understands it in terms of organization and constituency. What creates the “rival inter-ests” and “personal motives” to protect one’s institution if it’s not some combination of the different constituency your institution represents and the organizational elements, such as mode of selection and tenure, that further separate you from the other institutions? For example, the veto is a constitutional means, but it is unlikely that a president selected by and dependent on the legislature would have the personal motive to wield it. A unitary president independently selected for four years has the means and potential motive. Something analogous can be said of the judiciary and its willingness to stand against constitutionally suspect measures or actions.

By contrast, the legislature’s formidable powers, which do not even require personal motives to be a threat to the other branches, must be circumscribed by organization and constituency. In a “republican government the legislative authority, necessarily, predominates” and it is therefore “not possible to give to each department an equal power of self-defense.” “The remedy for this inconveniency,” Madison argues, “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” (51: 350). The legislative authority of Congress is balanced by the organizational device of bicameralism, a strong form of bicameralism in which the two cham-bers are based on rather different constituencies.

After the few examples he offers to illustrate the balancing of powers and rival interests, Publius concludes no. 51 with a return to the argument


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from no. 10, invoking federalism and the complication of factional politics. In the end, no. 51 offers an incomplete sketch, a sketch that must be filled in and completed by the other papers. When this is done, the primacy and relationship of the three variables—powers, organization, and constituen-cy—become clear. That is, each of the examples of the “auxiliary precau-tions” Publius mentions or elaborates as he proceeds through each of the institutions falls into one of the three categories. For example, as we will see, no. 70 concentrates on the unitary executive and no. 78 the appoint-ment and tenure of the judiciary, all organizational factors. Constituency, which makes only a quick appearance in no. 51 when Publius refers to “modes of election,” is a vital component in many other papers.

No. 51, which seems to beg for a list of the checks and balances and the relationships among them, is instead partial and at points frustrat-ingly vague. As a result, most accounts tend to be either imprecise or critical about the exact architecture implied in no. 51, that is, what really composes the separation of power and checks and balances. Hence, I believe Publius’ treatment of the separation of powers and its relation to checks and balances has generated no small amount of understandable hand-waving and hand-wringing from scholars. Although hand-waving can be a pejorative term for a deceptive attempt to get past a moment when a difficult explanation is required, I use it in a purely descrip-tive manner. In this case, hand-waving characterizes an analysis that, regardless of intent, does not provide much detail or explanation of key elements or complexities, perhaps in part because the explanation or detail is not self-evident. Hand-wringing is likewise often a pejorative term, invoking an overwrought expression of concern. As with hand-waving, I intend it to be merely descriptive, in this case of the scholars who in doing a probing analysis of Publius’ argument and logic—they typically name Madison as their implicit interlocutor—raise concerns and express doubt about his argumentation and conclusions. Madison’s critics concern themselves with the potential gaps in the arguments and wring their hands over whether Publius solves the problems he poses.

This hand-wringing goes back at least, and most famously, to Robert Dahl’s classic A Preface to Democratic Theory, which is centered on an extended critique of what the author calls the “Madisonian theory of democracy.”2 In particular, Madison’s “inadequate” argument “provides no satisfactory answer to the fundamental questions it raises” about controlling the power of government in general and institutions in particular.3 To wit, are separation and checks even necessary given the


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social restraints Madison describes in no. 10? In other words, as Dahl claims, Madison’s argument “underestimates the importance of the inherent social checks and balances existing in every pluralistic society.” “Without these social checks and balances,” Dahl concludes, “it is doubt-ful that the intragovernmental checks on officials would in fact operate to prevent tyranny; with them, it is doubtful that all of the intragovern-mental checks of the Madisonian system as it operates in the United States are necessary to prevent tyranny.”4 Perhaps Dahl is right that the system of separations and checks is a bridge too far, and certainly my argument about the institutional theory of power has nothing to say about the wisdom of, for example, a parliamentary versus presidential system. But Dahl also does little to elucidate the complexity of Madison’s intragovernmental checks, especially by not recognizing how constitu-ency is a core part of the checks and balances, which makes judgment on the question he raises perhaps premature or less certain.

In his examination of the papers, Garry Wills draws on and elaborates Dahl’s critique, but also devotes much greater attention to the details of nos. 47–51. Wills makes much—too much—of the fact that the division of the legislature is the only check named and discussed, but he does so by dismissing the explicit language about appointments and salary as well as implied reference to the qualified executive veto. Wills wrestles mightily with Publius’ ambiguities in no. 51 but does not show that the rest of the papers brings considerable clarity to the relationship between separations and balances by consistently interrelating powers, organiza-tion, and constituency.5

In a similar vein, William Kristol examines the separation of powers focusing on nos. 47–51. The “problem” as Kristol sees it is that Publius offers “precious little” in the way of justification for the principle of separation and the “intrinsic character of each of the powers.” “At most,” Kristol argues, “one could say that while it is relatively clear that power must be separated, it is unclear why power should be separated into these three powers, each with its particular features.” Kristol provides a careful reading of these core papers, and in so doing, he juxtaposes vari-ous elements of Publius’ balancing act, but without categorizing them, and all in service of his critique of Publius’ arguments as underspeci-fied and incomplete.6 John Ferejohn, who comes close to recognizing the three variables, asks whether Madison fatally misjudged the power of the legislature relative to the executive and in effect indicts no. 51 as a conceptual muddle. Like Kristol, Ferejohn also examines what he


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calls the “Madisonian separation of powers” and touches on aspects of powers, organization, and constituency, but emphasizes that Madison’s republican theory of institutional power was based on “popular proxim-ity” or “the idea that the most powerful republican institutions are those closest to the people” without exploring how Publius’ implicit theory involves all three variables.7

As we have seen, some of this confusion stems from an often restric-tive focus on the few explicit checks listed in no. 51 and the attempt to juxtapose them with the separation of functions. As we will see, the arrangement of the three variables constitutes institutional power in such a way that the distinctions between separations and checks are more misleading than illuminating. The separations, balances, and checks arise in the relational totality, not the individual elements.

If the hand-wringers sometimes miss the forest for the trees, many other examinations or summations of no. 51 mostly steer clear of the trees but provide a rather blurry picture of the forest. There is no small amount of hand-waving in which the famous passages from the paper are left to speak for themselves, explicitly or implicitly clarified by our modern understanding of the system of checks and balances. The hand-waving treatments of nos. 47–51 are not necessarily wrong. Instead, the central subject is largely undissected, and we are left with relatively straightfor-ward distinctions between the separation of powers and the checks and balances. The gaps and elisions are ignored. A representative example is David Epstein’s detailed description of the separation of powers in which Publius’ words do much of the work but not much light is shed on the logic of those words. As he writes, “Constitutional means of resistance must be given because not all of the departments possess such means as part of the functions naturally assigned to them by the separation of powers. Thus, paradoxically, their powers can only be protected by being altered.”8 Epstein is imprecise about the distinction between powers and power. If he means the former, then he is wrong insofar as even Madison’s most clearly stated check—bicameralism—is not an alteration of powers or authority. It is an organizational change. But more generally, the nature of the alterations is not explained. William Lee Miller writes with regard to no. 51: “The phrase ‘checks and balances’ does not fully capture the complexity that Madison is here and elsewhere describing.” But all Miller seems to mean by this is that the founders wanted strong and effective, not just checked, government. He duly notes that “depend-ence on the people” must be linked to “auxiliary precautions” but aside


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from mentioning federalism and the general separation of power, we get no further insight on the nature of the auxiliary precautions.9 Other scholars take this kind of approach as well.10

The apparent deficiencies or obscurities of no. 51 dissipate if not disap-pear when seen in the larger context of the papers as a whole, and when they are not read from a literalist or legalistic, and typically modern, standpoint, one that sees them as equal branches with the legal authority to check the others.11 Instead, the checks and balances and maintenance of the separation are matters of institutional power broadly construed, not simply constitutional or legal authority. It is not that most scholars do not recognize or acknowledge this, but they do so only partially, in its pieces and particular elements. At the end of his essay on the papers’ treatment of the separation of powers in nos. 47–51, William Kristol writes, “We learn more about the separation of powers from Publius’ discussion of the particular powers in Federalist 52–83.”12 Yes, those papers are essential in fleshing out the picture of institutional power, but they are not, as we shall see, only or even primarily about powers. The subsequent papers are precisely the ones in which Publius brings organization and constituency to the fore and interlaces them with powers. If it were mostly about legal authority, then there would be no need for Publius—as he does at many points throughout the papers—to dwell on the power of constituency, as we shall see. Would it matter that the legislature is close to the people if the only significant element of the checks and balances is constitutional authority or powers? Recognizing the other elements—organization and constituency—as distinct categories allows us to see a system that is complex but fairly clear and coherent.

Instead of a separation of powers and checks based on contending powers, it is the separation and balances of three sources of institu-tional power. The formal allocation of powers, whether through the Constitution or subsequent developments (including law and judicial decisions), is clearly the core of the separation of powers. Other formal powers are directly checks and balances (such as the veto and impeach-ment). Still others blend the two, that is, they are part of the functional division of labor but can also function as a check or balance (such as judicial review and the shared powers of treaties and appointments). But the checks and balances and forces that maintain the separations transcend this familiar list and Publius has far more to say about these other things, mostly in the form of organization and constituency, than he does about the formal powers whether exclusive or shared.


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Powers, organization, and constituency in The Federalist

Powers

Given that the formal separation of powers is first and foremost about the functional differentiation of constitutional authority, it is surprising how little Publius has to say about the powers themselves, the extent and contours of those authorities or distinct functions.13 The vast bulk of what Publius has to say about governmental functions, and it is a lot, is in the early papers on the shortcomings of the Articles of Confederation, span-ning most of nos. 11–46. In detailing the deficiencies of the Confederation as a national government Publius discusses specific powers as the general things a real national government needs to do or manage, such things as taxation, national security, trade, and so forth—and these are, by impli-cation, powers that are granted to the proposed Congress.

When Publius gets to the institutions after his discussion of the sepa-rated branches sharing power in nos. 47–51, discussion of the constitu-tional authority given each branch takes a while to appear. Ten straight papers on the House do not even mention powers; as we shall see they are exclusively about organization and constituency. The Senate elicits a discussion of the treaty power in no. 64, and nos. 65 and 66 examine the trial of impeachments, which is kind of a hybrid between powers and organization. Publius spends more time on the duties and authorities of the executive, with 7 of the 11 papers mostly about powers. The powers of the judiciary are of course covered in the famous no. 78 and also in 80 and 81. Overall, only 13 of these 30 papers from no. 52 through no. 81 are in part or primarily about powers.

Constitutional powers and functional responsibilities are the most familiar and self-evident element of the theory. What are the duties of each branch of the national government and what constitutional author-ity is allocated to each to perform those duties? To the framers, the title of each branch was a definition of its area of authority and functional responsibility. Publius is relatively silent on the exact nature of the core functions of each branch perhaps because they were taken for granted even if not precisely defined. As he notes in no. 37, perhaps somewhat strategically to set up his later arguments about shared power,

Experience has instructed us that no skill in the science of Government has yet been able to discriminate and define, with sufficient certainty, its three


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great provinces, the Legislative, Executive and Judiciary; or even the privi-leges and powers of the different Legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. (37: 235)

The general conceptual separation of powers—legislation, execution, and adjudication—was a straightforward exercise even if the devil was in the details of actual practice.

Regardless of such difficulties, the legislative power was clearly seen as the fundamental authority, without which the other branches would have little to do. Law-making authority is both general and particular, detailed from the power of the purse on through the provisions of Article I, section 8. As noted earlier, though he does cover a few powers particular to the Senate, Publius does not cover the powers of the House of Representatives and Congress as a whole perhaps in part because those had been covered implicitly in the earlier papers on the flaws of the Confederation and the new republican distribution of authority.

As far as the president, Publius famously defends “energy in the execu-tive,” but contrary to the imaginaries of recent apologists for presidential dominance, this energy is to carry out the “confined authorities” of the executive. It is the energy necessary for the responsible and efficient execution of his important but circumscribed administrative responsi-bilities, which include “the protection of the community against foreign attacks” (70: 471; 71: 486). This general defense of the executive power is supplemented by attention to the veto, appointment, and treaty powers as a few of the explicit powers given to the presidency. Owing in part to its functionally clear and limited nature at the time, Publius’ description of the executive’s authority can seem like a calculated understatement, given what might have been Hamilton’s hopes for that office and given our view of modern presidential power. Nevertheless, as written in Article II, the powers were few and largely administrative.

Even less detail is spared for the judiciary. Publius famously announces that the judiciary “from the nature of its functions, will always be the least dangerous (branch) to the political rights of the constitution.” Whereas the president has the sword and Congress can make law and control the purse, 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 judg-ment” (78: 522–23). True enough, but this strong statement creates the


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rhetorical space for Publius to offer his terse, matter-of-fact defense of judicial review. The judiciary might be weak relative to Congress and the executive, but rights and separated authority can be maintained only by courts “whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void” (78: 524).

In short, concentrating on powers, one gets a truncated reading of the papers and incomplete understanding of the system it is defending.

Organization

It is remarkable that so much of The Federalist is devoted to the organiza-tion of each branch and the importance of organization more generally. Organization, as I defined in Chapter 1, encompasses institutional struc-ture (including size, membership, tenure, remuneration), procedures (rules of operation and decision), and other internal resources (such as staff). How is each branch selected? What is its membership and what are the characteristics of the membership in terms of size, qualifications, and tenure? How is decision making structured within an institution?

As noted earlier, every single paper on the House of Representatives (ten in a row from no. 52 through 61) is about organization. These are followed by the two most noted papers on the Senate, which are exclu-sively about Senate organization. Nos. 62 and 63 are extensive elaborations of the positive consequences that flow from a smaller, selected Senate of older and wiser legislators. The most read papers on the presidency are about how the president is selected (no. 68) and why there should be only one president (no. 70). The length of the presidential term is the subject of both nos. 71 and 72. Consequently, organization is the sole subject of 4 of the 11 papers on the executive. Three of the six papers on the judiciary are exclusively or primarily about organization, including no. 78, the most read and quoted of the group, which is discussed in more detail later on. Overall, 17 of the 30 papers from no. 52 through no. 81 are about organizational elements in the constitutional design.

Moreover, the ineluctable nos. 10 and 51 are at their core arguments about organization or structure. No. 10 argues that the size of the republic, its fundamental organizational characteristic, is the linchpin of stability and durability. Although even casual students of American politics remember no. 51 as the quotable argument about the separation of powers and checks and balances, much less recognized is that its argu-ment is significantly organizational, even beyond what was discussed


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earlier. Publius begins no. 51 with the principles that each branch must be appointed independently from the others, insofar as practicable, and that each must not be dependent for its pay, again insofar as possible. After these, the first and foremost auxiliary precaution is bicameralism—the organizational division of Congress to mitigate the dangers of the legisla-tive power—and the paper ends with a lengthy echo of no. 10 by invoking federalism as not just a division of powers but as another organizational complication that checks the national power and social forces. It is easy to lose track of the fact that the Publius does not even mention the veto directly, invoking instead a hypothetical “absolute negative” and, rather obscurely, that the president’s position might be bolstered via a stronger relationship with the Senate than with the House (51: 350).

Insofar as organization is noted by scholars as a vital element in the institutional logic of the papers, it is frequently recognized—and rightly so—for its role in shaping the character of the institution’s membership and its behavioral tendencies, in effect, producing its governmental virtue, the special quality it brings to republican governance. A large and frequently elected House produces the closeness to the people and demo-cratic (or near-term) responsibility. A small and less frequently selected Senate produces the virtues of deliberation and national (or long-term) stewardship. Unlimited tenure fosters a detached judgment that is of singular importance to the judiciary. But each organizational feature is two-sided: at the same time that it fosters a particular intrainstitutional quality important to republican government it offsets or balances some other advantage given to that institution or another. The internal virtue also affects external relations. If organization systematically shapes behavior and purpose, the corollary is that it is a vital element in the structure of institutional power, as we shall see.

And as vital as the veto might be, “energy in the executive,” the key virtue and most important characteristic of the presidency, is grounded in organization, not powers. “The ingredients which constitute energy in the Executive,” proclaims Publius, “are first, unity; secondly, dura-tion; thirdly, an adequate provision for its support; fourthly, competent powers.” Competent powers—including the veto and the shared treaty and appointment—come last. The other three—unity, term length, and compensation (organizational elements all)—take precedence in nos. 70, 71, and 72. The unitary executive is essential to the virtue of efficient and responsible administration, and it also cuts against Congress’ division and cumbersome size to offset legislative powers.


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As much or more of the judiciary’s institutional power rests on organizational foundations. In particular, as noted earlier, “permanency in office” produces the essential quality of judicial independence and modestly offsets the superior powers of the other branches (78: 523–24). What induces a certain kind of reasoning by judges is also what insulates the Court from the other branches. The first paper on the judiciary, no. 78, is famous for its trenchant analysis of the Court’s limited power cited earlier. This invocation of relative powers is made, however, solely to introduce the real subject of the paper: a justification for justices’ “permanency in office.” Unlimited tenure is the fundamental organiza-tional feature that offsets the “natural feebleness” of the judiciary relative to Congress and the presidency. And much as the analysis of relative powers is to set up the discussion of tenure, no. 78’s oft-quoted mention of judicial review—important as it might be—comes in the middle of, and ultimately as part of, the argument for permanency. This is followed in no. 79 with arguments on behalf of the constitutional provisions to protect Court compensation and the limitations on the power to remove justices (in some ways finishing the discussion of “permanency in office”). Following the logic that “a power over a man’s subsistence amounts to a power over his will,” Hamilton argues that the provision for compensation of justices—that it is to be adjusted from time to time, but not diminished—goes hand in glove with life tenure as another organi-zational counterpoise.

Constituency

Publius’ discussion of “opinion” as the great foundation for governments of all types provides the basis for understanding constituent power.14 With evident understatement Publius notes that “the most rational govern-ment will not find it a superfluous advantage to have the prejudices of the community on its side” (49: 340). Publius uses the supposition “that all governments rest on opinion” to argue against frequent appeals to the people to resolve constitutional disputes, especially “whenever any one of the departments may commit encroachments on the chartered authorities of the others” (49: 339–40). Such appeals would tend to foster disrespect for the government in general. Moreover, the legisla-tive branch often would have the upper hand in such contests. If Publius was not much of a democrat by modern standards, he was exceedingly sensitive to the role of popular opinion in life and death of republics.


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And what is true of a government as a whole is true for its component institutions (or leaders). Consequently, opinion, or constituent power, is an essential ingredient in the interinstitutional balancing act.

Although powers and organization are more immediately familiar and manifest in The Federalist as a whole, constituency makes an early appearance in the series of papers on the insufficiency of the confedera-tion.15 Publius argues not only for government power based on the direct imposition and enforcement of national law on individual citizens, but that the national government also requires the constituent power of that attachment and connection to lend support to the new national government. Nevertheless, “[i]t will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments . . . will generally possess over the people” (17: 106). The proximate and immediate powers wielded by the state governments will attract greater social interest and passion than the indirect and distant powers of the central authorities.

Moreover, as Publius works into his discussion of the relationship between the doctrine of separation of powers and the Constitution’s checks and balances, he starts not with the unique powers given to each branch and the explicit checks each has in its constitutional quiver but with the role of public opinion in determining the relative power of each branch. In a republic, “where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength . . . it is against the enter-prising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions” (48: 334).16 By contrast,

The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as, by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: And their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friend-ship, and of acquaintance, embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influ-ence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. (49: 341–42)


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Constituent power in the form of the sympathies and support (or lack thereof) of “the people” is one of the most persistent themes in the papers.17

Is the executive bereft of popular support? Not entirely. In the discus-sions of the method of presidential selection, the length of term, and reeligibility, Publius links the presidency and popular opinion, even if indirectly (and in Hamilton’s case probably reluctantly). Presidential selection was committed “to men, chosen by the people for the special purpose, and at the particular conjuncture.” In this way, the appointment of the president is “referred . . . in the first instance to an immediate act of the people of America” (68: 458–60) through the decisions of their state legislatures. The method of presidential selection reveals another interactive connection between constituency and organization. To maximize the likelihood of executive independence, its appointment (an organizational element) had to be distanced from legislative control. The system of ad hoc electors was the solution to this dilemma.

The president’s length of term and reeligibilty, somewhat surprisingly, also have a subtle but important relationship to the potential constitu-ency for executive power. The president must have sufficient time in office and be “independent for his continuance in office on all but the people themselves” (68: 460). A four-year term would allow the execu-tive independence and firmness in action, at least until the next election approached. Even so, if his past actions had established “himself in the esteem and good-will of his constituents . . . [h]e might then hazard with safety, in proportion to the proofs he had given of his wisdom and integ-rity, and to the title he had acquired to the respect and attachment of his fellow-citizens” (71: 485).18 In fact, a president might even be in a position to challenge congressional dominance should the executive power be “in the hands of a peculiar favorite of the people” (49: 342).

Finally, Publius anticipates an indirect but important relationship between the judiciary and social forces. The judiciary’s ongoing constitu-ency derives from popular support for the Constitution as higher law. In stating the case for judicial review, Publius argues that public opinion will support the Court’s general role as arbiter of higher law. Some critics of judicial review imagined that “the doctrine would imply a superiority of the judiciary to the legislative power” (78: 524). Not so, argues Publius, laying out the familiar syllogism: the Constitution is the will of the people; the will of the constituents as expressed in higher law is superior to the will of their representatives; the Constitution therefore trumps a legislative


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act contrary to it. Who will determine whether a law or act is contrary to the Constitution? Congress can’t be a judge in its own cause, and frequent appeals to the people must be ruled out. “It is far more rational to suppose,” Publius concludes, “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority” (78: 525). In this way, the judiciary is the protector of the better angels of our constitu-tional nature and we the people will render our support accordingly.

Like organization, constituency is both an institutional virtue and interinstitutional balancer. As we have seen, Publius often discusses constituency juxtaposed with powers, and their relationship is an interactive one. Constituency can augment or diminish legal authority; powers can shape or even determine the effect of constituency. Public opinion would generally protect the states from national encroachment, but effective use of national powers might sway the people. The judiciary is properly insulated from democratic forces, but might lean on popular support to uphold higher law against the other branches, and so forth.

Powers, organization, and constituency as constitutional architecture

Clearly, Publius did not view the three elements primarily as independ-ent sources of institutional power. Even in the separate descriptions of powers, organization, and constituency, the interactions are manifest. The constitutional balance of power is, again, in the relationships between and among the three. The Federalist’s Constitution is a jigsaw puzzle of differently shaped pieces of each interlaced across the branches of government.

As we have seen, the potentially dangerous combination of powers and constituency in Congress is to be balanced first and foremost by organi-zational features that would dilute the powerful mixture. This organiza-tional attenuation is threefold. The primary organizational check is the bicameral structure itself. Second, Congress is not only bicameral but the two chambers are compositionally quite different (in constituency, mode of selection, length of term). Finally, the House and Senate are where the logic of no. 10 would be manifest. The ability of each, even by itself, to act decisively and consistently is complicated by the diversity of factions represented in each. Substantial constitutional authority and constituent


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power is balanced by organizational complexity. Indeed, this raises the point that “representation,” a subject much discussed by Federalist schol-ars, especially in reference to no. 10, is composed of variable combina-tions of organization and constituency. The House is large (organization) and tied to the people as a whole (constituency). The Senate is tied to the states and small. This point is worth emphasizing here to show that the Federalist theory is relevant to understanding not just the “separation of powers” but also the problem of “representation,” two subjects that some scholars of the papers have treated as separate and even in tension with one another, as we have seen.

In contrast to Congress, the presidency represents the converse arrangement of strengths and weaknesses: relatively limited constitu-tional powers and weak or uncertain links to constituencies augmented by organizational simplicity. The executive’s power in its original form is largely reactive (to the legislature) or contingent on extraordinary circumstances (such as crisis or war), and the president is not directly connected to a popular constituency. But the president is unitary in organization and therefore capable of decisive and rapid action. It’s not just, for example, that the executive comes equipped with the veto, but that the unitary president has the veto. A single person who can wield it decisively.

Finally, the judiciary is the farthest removed from a popular constitu-ency and is largely reactive in its rather vaguely defined but potentially formidable powers. Appointment for “good behavior” creates, however, a monastic organization to foster independence and fortitude. Again, organizational simplicity and insulation counteract the lack of positive power and constituent support.

Federalism and the Federalist theory

We have concentrated on the three decision-making institutions of the national government. Federalism plays a leading role in the constitutional scheme and in The Federalist, and is of course no less part of Publius’ model than the three branches. If we think of them as institutions, the individual states are potent actors in the system because of two factors: their powers and constituency. As far as powers, the states have the constitutional author-ity to legislate in myriad ways that act directly on individuals. Madison, Hamilton, and other framers recognized the significance of this imbalance


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(the Confederation could act only through the states and not directly on citizens) and sought direct powers in the Constitution, such as taxation. This same ability of states to act on individuals relates to the constituent power as well. Close to the people in geographic proximity and representa-tional density (with fewer citizens per representative), state governments, as noted above, had a leg up in a potential competition for the affections of the average citizen. The advantages in powers and constituency are essentially the theme of no. 27, summed up by Publius’ observation that a “govern-ment continually at a distance and out of sight, can hardly be expected to interest the sensations of the people” (27: 173). He puts the point more bluntly a few papers later. Speculating about the possibility of states or the national government encroaching on one another’s power, Publius echoes and expands on his argument from no. 17:

What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics, strength is always on the side of the people; and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is, that such contests will be most apt to end to the disadvantage of the Union. (31: 198)

The internal organization of state governments was beyond the framers’ control, but the multiplicity of states—an organizational factor—was integral to Publius’ plan in no. 10 for moderating the power of constitu-ency and, by implication, states themselves. “[F]actious leaders,” as he argued, “may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States” (10: 64). Publius returns to the same organizational point as he ends no. 51:

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. (51: 351)

This organizational factor not only checks the national government but also offsets the individual powers possessed by states: they are indi-vidually strong but collectively unorganized and factious. In fact, the collective action problems posed by the Confederation were perhaps the central motivation for a revised Constitution that decoupled the national government from direct state control. And the new compact


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turned the confederal vice—the multiplicity of independent states—into a constitutional virtue.

The variables as a model or theory of institutional power and change

The consistency with which Publius invokes and interrelates the powers, organization, and constituency—even if he calls them by different names—to explain the relationships of power between and among the institutions of the proposed government justifies my claim that they should be treated as a model or theory of institutional power. Again, Publius in no way states this as his intention. It emerges from the work, nevertheless.

It is easy to argue that Publius, despite evident foresight, portrayed the three elements and their relationships as relatively fixed and stable. The immediate political purpose of the papers comes to mind. Even if so inclined, Publius had no incentive to speculate about how the system might evolve given he was trying to convince his audience that the proposed Constitution would not change into something many of his readers feared—a de facto monarchy, an overweening central authority, an aristocracy based in the national capital. Also, the basic features of the three elements were structured by clauses in the Constitution, and the Constitution was hard to change. Finally, stability was one of the fundamental characteristics sought by the framers, a virtue extolled in the papers by Madison and Hamilton, whatever their other differences might have been. And yet one of the signal features of the papers is the anticipation of interinstitutional conflict, between states and nation, and among the national institutions. Stability was valued and hoped for, but that was all relative to the expectation of power struggles that would regularly test the boundaries and battlements of constitutional divisions.

As noted earlier, Woodrow Wilson accused The Federalist of seeing politics as a Newtonian machine, “[p]olitics turned into mechanics.” Instead, government is “a living thing” that falls “under the theory of organic life,” and therefore is “accountable to Darwin, not to Newton.”19 Wilson’s juxtaposition is clever but misleading. Unlike Newton whose task it was to explain why the physical universe behaved as it did—for example, why the planets were fixed in their elegant orbits—Publius


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was defending the Constitution’s institutional arrangements as having a high probability of sustaining the combined advantages of the func-tional separation of powers and interbranch restraints. The interrelated combinations of powers, organization, and constituency inscribed at Philadelphia and elucidated by Publius were the architecture of that balancing act. So there is an acknowledged uncertainty to the consti-tutional project that makes it far less static and rigid in its claims than Wilson’s Newtonian metaphor implies. The framers knew constitutional theory would be sorely tested as the Constitution was put into practice; politics might trump architecture. And therein lies the transition from stability to change in institutional power. If the trio of elements arranged in the right manner is the key to a theoretically stable balance of power, then changes in those same variables would be essential elements in any disruption and reconfiguration. Recast as a more general explanation, the Federalist theory accounts for both stability and change as two sides of the same constitutional coin.

The Federalist certainly anticipates political struggles for preeminence if not survival (among the fittest politicians, if Madison and Hamilton had their way). Even with what has been discussed so far—the original constellation of powers, organization, and constituency—the theory is not wholly static. The role of constituency in particular implies that the pieces puzzle were not permanent but protean. The potential constitu-ent power for the president and judiciary are examples of things Publius anticipated might develop. While in the original constitutional sense the three elements can be seen as fixed, we know from history that they are variables, and the theory I derive from the papers shows how changes in the variables alter institutional power. More generally, the model or theory of institutional power, though a by-product of the papers’ more direct purposes and arguments, accommodates and helps to explain a considerable amount of the Darwinian change, including that which Wilson was both witness to as a scholar and participant in as politician.

Here I use the words model and theory more or less interchange-ably, while taking note of and acknowledging the ways in which they can be distinguished in social and natural sciences. The general factors and myriad relationships that can be derived from The Federalist’s use of the three variables can be formulated as a more precise set of argu-ments structured around (1) a set of defined variables, (2) an explicit explanatory claim, and (3) the basic causal mechanisms involved in the relationship between these variables and institutional power. The


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fundamental theoretical assertions that flow from the logic of the papers are as follows:

In a political system the power of one of its institutional elements 1 is to a significant degree a function of the relationship between its formal powers, its internal organization, and its constituency, relative to the other institutions within the system.The greater the powers (in quantitative and qualitative terms), and/2 or the more effective the organization, and/or the more powerful or broad the constituent (social) support, the stronger the institution (or in view of Publius’ central concern, the more dangerous the institution, to constitutional liberties).When the variables are of mixed values, so is the power of 3 the institution, that is, strengths in one variable are offset by weaknesses in the other (and constitutional design must incorporate these offsets).Although legal or constitutional authority (powers) is almost 4 always a prerequisite for an institution to act, powers do not automatically trump organization or constituency. In fact, because of the axiom that “in republics strength is always on the side of the people” (31: 198), constituency can be the most powerful of the three.Changes in the nature of one or more of the three variables across 5 one or more of the institutions produce change in the relative power of each institution.

This is not to claim that Publius believed these were the only factors affecting institutional power. If nowhere else, in the discussions of the executive Publius invokes the potential impact of exogenous circum-stance and individual agency, even if somewhat indirectly. As noted earlier, the presidency could be “in the hands of a peculiar favorite of the people” (49: 342), a quick reference to power of a charismatic leader. The ability to respond quickly and effectively to “foreign attacks” is treated as an essential of presidential power. But Publius does not dwell on such matters, which are beyond the control of the Constitution. Powers, organization, and constituency are the very things structured and inter-related by that document. The vagaries of personality and circumstance cannot be specified in the same way. Instead, such factors are channeled through the combined effects of powers, organization, and constituency. As we shall see in the next chapter, even if there are other variables to


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consider, such as agency and exogenous events, the effect those have on institutional power is directly related to the variables from The Federalist. The impact that such other factors might have on institutional power—perhaps a war, or a particularly popular president—is typically registered through a change in one or more of the three variables, such as war increasing the powers of the presidency, or a powerful congres-sional leader making lasting changes in congressional organization. In this way, the Federalist theory allows us to conceptualize and compare, across cases, the elements of change that alter the relative and absolute power of political institutions.

Notes

For the reader’s convenience this chapter will use parenthetical citations of 1 the papers, and all citations are from Jacob Ernest Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1982). In a few instances I chose to follow modern spellings and punctuations used in other editions. My use of the Cooke edition signifies nothing. There are many fine editions, and any will do for my interpretations.Robert Dahl, 2 A Preface to Democratic Theory, Expanded ed. (Chicago: University of Chicago Press, 2006), 4.Ibid., 21.3 Ibid., 22.4 Gary Wills, 5 Explaining America: The Federalist (Garden City, NY: Doubleday, 1981).William Kristol, “The Problem of the Separation of Powers: Federalist 47–51,” 6 in Charles Kesler, Ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987), 100–130.John Ferejohn, “Madisonian Separation of Powers,” in 7 Samuel Kernell, Ed., James Madison: The Theory and Practice of Republican Government (Stanford, CA: Stanford University press, 2003), 126–55.David F. Epstein, 8 The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984), 137.William Lee Miller, 9 The Business of May Next: James Madison and the Founding (Charlottesville: University Press of Virginia, 1992), 167.Edward Millican, 10 One United People: The Federalist Papers and the National Idea (Lexington, KY: University Press of Kentucky, 1990), 152–53; Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Cambridge, MA: Harvard University Press, 1999), 310; Martin Diamond, “The Federalist,” in History of Political Philosophy, ed. Strauss and Joseph Cropsey (Chicago: Rand McNally, 1963), 573–93.


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As another example, Millican argues that “the crucial necessity” for Madison 11 “is that each branch of the government be afforded a regular legal check on the actions of the others” [emphasis added]. Edward Millican, One United People: The Federalist Papers and the National Idea (Lexington, KY: University Press of Kentucky, 1990), 152.Kristol, “The Problem of the Separation of Powers: Federalist 47–51,” 130.12 Among others who note Publius’ lack of specificity on this subject, especially 13 in nos. 47–51, see George Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989), 127; Kristol, “The Problem of the Separation of Powers: Federalist 47–51.”For an early discussion of the 14 Federalist articulation of a “conservative” theory of public opinion (i.e., that it is powerful but does not define justice, that it is the source of government power but also must be managed): Francis G. Wilson, “The Federalist on Public Opinion,” The Public Opinion Quarterly 6, no. 4 (December 1, 1942): 563–75. See also Wills, Explaining America, especially chapter 3 for a discussion of Hume and Madison on the role of opinion.See nos. 15–17 especially.15 Only after this does Publius add that “[t]he legislative department derives a 16 superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments” (48: 334).As another example: “The most 17 popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government” (66: 403, emphasis in original). In addition to those already cited (nos. 16, 17, 27, 48, 49, 66), see 28: 179; 33: 206; 45: 311–12; 46: 316; 63: 430.David F. Epstein characterizes this as the president’s potential “line of 18 credit” with the people. David F. Epstein, The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984), 181–82. See also no. 72 on executive reeligibility and fame as a positive motivation for good policies that take a long time to implement.Woodrow Wilson, 19 Constitutional Government in the United States (New York: Columbia University Press, 1908), 56.

The Federalist Papers and Institutional Power in American Political Development

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