HKB
22 passages · search this phrase →
Often appears with: separation of powers and checks · forms of government · judges and legal authority · courts, trials, and pleading · faction, party, and civil strife · constitutions and founding law · tyranny and despotism · legislative usurpation · justice as a virtue · independence of the judiciary · counsel and advisers to rulers · corruption, patronage, and bribery
Usually: argument (20) · skepticism (9) · detachment (7) · exhortation (3) · censure (2) · indignation (2) · commentary or gloss (1) · letter or document (1) · injustice endured (1) · curiosity (1)
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“The PASSIONS, therefore, not the REASON, of the public would sit in judgment.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · precept
“It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
In Federalist No. XLI’s continuation, Madison outlines two questions about the Constitution: whether the federal powers transferred are unnecessary or dangerous, and how the government’s structure distributes those powers among branches.
To the People of the State of New York: The Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the s…
Madison argues that tyranny results from concentrating legislative, executive, and judicial power in the same hands, but that the Constitution avoids the “misconceived” version of the separation maxim attributed to Montesquieu.
parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Wer…
Hamilton argues that when legislative party insiders judge constitutional disputes through conventions or similar bodies, public judgment is driven by passions and partisan influence, not the true merits of the constitutional question.
for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those le…
Hamilton argues that because external constitutional declarations and restraints are inadequate, the federal government must be structured with internal checks and balances—using rival interests, ambition counteracting ambition, and division of powers.
To the People of the State of New York: To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its s…
Hamilton continues by contrasting the Revolution-era Congress with a feared-capture future, then argues that dangers from other federal branches are limited by officeholding rules and the logic of responsible republican checks.
appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to…
Jay answers objections by saying treaty power need not be limited to the legislature, that treaties remain binding as bargains requiring both parties’ consent to cancel, and he raises concerns about jealousy and unequal state interests.
assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved …
Hamilton reviews objections to the Senate as impeachment court, rejecting the claim of unlawful fusion of powers, and answers that New York already concentrates impeachment and final judicial authority in its Senate, undermining the criticism.
the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the…
Hamilton argues against the claim that the President can fill Senate vacancies during recess, saying the relevant constitutional clauses cover other officers, not senators, and that this interpretation is unjustified.
the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, an…
He insists the executive must not be subservient to popular impulses or dependent on the legislature, since true separation requires each branch to remain independent rather than nominally separated.
of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes s…
Hamilton transitions to the judiciary, defending federal judges serving during good behavior, arguing judicial independence protects liberty and that courts must prefer the Constitution over statutes.
We proceed now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being rel…
Hamilton defends a Supreme Court as a distinct, final tribunal rather than a legislative branch, rejecting claims that its spirit-of-the-constitution interpretation would be unprecedented, uncontrollable, and beyond remedy.
To the People of the State of New York: Let us now return to the partition of the judiciary authority between different courts, and their relations to each other, “The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”[1] That there ought to be one court of supreme and …
Hamilton argues against a Supreme Court made up as a part of the legislature, claiming it would nearly violate separation of powers, fail to moderate bad laws, and risk faction and defective legal knowledge, so states should use independent judicial bodies.
the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legisl…
He claims that Montesquieu’s argument for small republics actually points toward confederate republics, rejects splitting states into many jealous commonwealths, and uses modern concepts like separated powers to strengthen liberty.
sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina,…
Continuing the argument, Hamilton says executive independence fails if the executive and judiciary depend absolutely on the legislature, and that shorter terms weaken independence by lowering the magistrate’s incentives.
of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes s…
He describes how English courts competed for business using legal fictions, how equity and law split over specific performance and ejectment, and how separating judicial from executive roles arose from administrative complexity.
salary. Those parliaments are, perhaps, in many respects, not very convenient courts of justice, but they have never been accused; they seem never even to have been suspected of corruption. The fees of court seem originally to have been the principal support of the different courts of justice in England. Each court endeavoured to draw to itself as much business as it could, and was, upon that account, willing to tak…
Charles Pinckney writes to John Quincy Adams (1818) explaining that his federal plan proceeded from starting anew, dividing powers into legislative, executive, and judicial, and largely shaped later adoption, with specific differences in Senate and executive authority.
"SIR "On my return to this City as I promised I examined carefully all the numerous notes & papers which I had retained relating to the federal Convention--among them I found several rough draughts of the Constitution I proposed to the Convention--although they differed in some measure from each other in the wording & arrangement of the …
Debate turns to whether the national legislature should remove the executive on request of majorities of state legislatures, with Dickinson’s proposal, counterarguments about federalism and political intrigue, and a close vote rejecting it.
is, that I move the amendment. If it is not seconded or accepted I must be contented with the satisfaction of having delivered my opinion frankly and done my duty. The motion was seconded by Col. Hamilton, with the view he said merely of bringing so respectable a proposition before the Committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition wa…
Madison argues against electing judges by the legislature or other large bodies, warning of intrigue and lack of qualification, and suggests giving appointment power to the senatorial branch instead, leading to a close vote to strike the clause.
and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible. Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different…
Madison explains why judges should join the executive in revising laws: to bolster the executive against threats and to add wisdom and reduce danger of legislative errors, while others raise concerns about mixing powers and judicial bias.
this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced. M^r Dickinson considered it essential that one branch of the Legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the Legislatures of the States. This combination of the State Gov^{ts} with the national Gov^t was…
Madison argues that preserving liberty requires separating legislative, executive, and judiciary powers by making the executive independent of the legislature, analogizing it to judicial independence through fixed tenure to avoid tyranny.
is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced, on a succeeding election. M^r Madison.[135] If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be…
Williamson proposes paying the executive electors from the national treasury and Wilson seeks to revise Resolution 10 by giving the supreme national judiciary a role in the revisionary power; Madison supports this as a check against legislative encroachments.
SATURDAY JULY 21 IN CONVENTION M^r Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them. Justice required this: as it was a national service they were to render. The motion was agreed to Nem. Con. M^r Wilson moved as an amendment to Resol^n 10. that the supreme Nat^l Judiciary should be associated with the Executive in the Revisionar…
Arguments continue over how strong a negative and revisionary checks should be: concerns about paper money, legislative instability, the dangers of legislative usurpation, and eventual rejection or postponement of some forms of control.
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. ay. Mary^d ay. Virg^a ay. N. C. no. S. C. no. Geo. no. M^r Gov^r Morris regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public Credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house …