Solving
“By a faction, I
understand a number of citizens, whether amounting to a majority or a minority
of the whole, who are united and actuated by some common impulse of passion, or
of interest, adversed to the rights of other
citizens, or to the permanent and aggregate interests of the community.”
-
a
faction can be the majority or a minority
-
passion
or interest as “common impulse”
-
harmful
to rights of others or to aggregate interests
Poor Solutions
A pure democracy – a society in which the citizens assemble
and administer the government themselves – must be small to avoid the
“confusion of a multitude”.
-
Majority
factions can arise easily among small numbers
Representatives are no cure
-
“enlightened
statesmen will not always be at the helm”
-
“Men
of factious tempers, of local prejudices, or of sinister designs… may… obtain
suffrages [votes], and then betray the interests of the people.”
Large, Compound Republic as Solution
A republic
can cover larger numbers via representatives
-
number
of representatives will not be proportionate in small and large numbers
o
e.g.,
100 representatives from 10,000 people v. 1,000,000 people
o
if
“worthy” representatives are 1 in 5,000, then there are 2 in the small
democracy but 200 in the large republic
o
more
voters per official limit ability of the unfit to fool the people
-
risk
of going too large: official must understand local interests but not be too
beholden to them at the expense of national aims
o
national
legislature deals with national concerns
o
state
legislatures deal with local concerns
o
further
evidence of compound republic
Larger
numbers limit factions
-
more
diverse parties and interests
-
harder
for majority faction to form
-
harder
for a faction to communicate and coordinate with others
-
States
can contain factions
Problem of the Public Good
-
does
-
can we assume the “worthy” candidates will win?
Sharing Powers under
Text
Emphasizes “Separation of Powers”
-
nominally
separate powers into “departments”
o
executive,
legislative, and judicial
-
checks and balances on powers of each dept.
o
executive
can veto laws, but
o
legislature
can overrule veto with super-majority
o
executive
nominates judiciary and officials but legislature approves them
-
how would this prevent tyranny?
o
Rules
of constitution
o
“ambition
must be made to counteract ambition”
-
how
to guard one part of society against injustice of other part
o
monarchy
might perceive societal, or public interest but
o
might
pursue private interest of the monarch
-
in
compound republic multiple views mean that only “justice and the general good”
can unite factions
Was Resulting Republic Too Federal?
Anti-Federalist
Position
-
“compact
of republics” preferred to “compound republic”
-
dangerous
centralization
o
central
government would oppress liberty
o
state
governments would preserve liberty
-
contra
o
different,
homogenous states would make up diverse nation
o
Anti-Federalists
saw states as political communities
o
Believed
small republics of states would achieve common good
-
No
explicit protections for liberties (Bill of Rights)
Strong Federal Elements of
Constitution
-
Elastic,
or necessary and proper, clause of Art I, Sec. 8:
“To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.”
o
Congress
can pass laws on powers not enumerated but “necessary and proper” for
implementing those powers and for “all other Powers”
o
Basis
for inherent and implied powers of government
o
How
broad should this clause be construed?
-
Supremacy
clause of Art. VI:
“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”
Limiting Federal Elements
of Constitution (Dual Federalism)
-
enumeration of powers in Art. I, Sec. 8
o
should federal government only engage in enumerated areas?
-
denial
of explicit powers to federal government in Art I, Sec.9
-
“necessary and proper” clause to limit what federal government could do
o
not
a blank check but enabling the enumerated powers
-
Tenth
Amendment
“The powers not delegated to the
Ambiguity of the
Constitution and Federalism
-
concurrent
powers exist: e.g., taxation, police power
-
inherent and concurrent powers may clash
o
Lopez v. US (1995): police powers should be
exercised only in areas of enumerated federal authority
§
“Gun-Free
School Zone” is as a state, not federal area because it does not “substantially
affect” inter-state commerce
§
1790
federal murder statute restricted jurisdiction to “within ... any ... place or
district of country, under the sole and exclusive jurisdiction of the
o
Constitution
is a founding document for the polity and a set of rules and structures for
government organs
§
Limited
as a policy document or guide for governing
§
Product
of republican compromise