Content area
Full Text
Given that the focus of the Symposium is on the structural Constitution, what I want to talk about today is the separation of powers and, in particular, James Madison's The Federalist No. 481 and the differences between the strengths of the relative branches of government today versus what Madison envisioned. If you look at The Federalist No. 48, you will see that Madison was most concerned with the power that had been given to the new national Congress.2 In fact, he famously described Congress in The Federalist No. 48 as the "impetuous vortex" into which all power would be sucked but for the separation of powers.3 He was particularly concerned about Congress because of the power of the purse. As he wrote, "[it] alone has access to the pockets of the people."4
The executive, by contrast, was less of a concern for Madison because, as he wrote, it is "restrained within a narrower compass, and [is] more simple in its nature."5 The judiciary was even less of a concern for Madison. As he said, "[it is] described by landmarks, still less uncertain,"6 by which I believe he meant the case and controversy requirement of the Constitution.7
Madison was sufficiently concerned with the Congress and sufficiently unconcerned about the executive and the judiciary that he wrote, "projects of usurpation by either of these departments," - the executive or judiciary-"would immediately betray and defeat themselves."8 Congress, in Madison's view, was not just the most powerful and most dangerous branch, but, if you read The Federalist No. 48 carefully, it is not an overstatement to say that Madison believed that the power of Congress was the raison d'etre for the separation of powers. The checks and balances were there largely to constrain Congress. As he wrote, "it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."9
So, let's take a moment now to compare Madison's vision with our present-day reality. What you see is that both the judiciary and the executive are more powerful than Madison envisioned, and Congress is certainly less active and less of the impetuous vortex that Madison had in mind.
First of all, leť s talk about the judiciary. The case...