Democracy in “The Federalist”

By John Grove

In January, Dr. Grove published an article in Polity examining the role of the public will in The Federalist Papers. Reflections takes its name from Alexander Hamilton’s iconic statement about the possibility of government directed by “reflection and choice.” Yet The Federalist is not exactly positive about democracy. Throughout, it indicates that democracy is prone to factionalism: the division of society into groups devoted to pursuing their own narrow interests rather than those of the whole. Yet, The Federalist also indicates that it is important for any government to be “popular,” deriving its authority from the people. In understanding exactly what The Federalist says about democracy, Dr. Grove argues that it is important to remember that it was written by different authors, and that those authors may have had slightly different viewpoints on what exactly is problematic about democracy and how a good government can address these faults:

The two primary authors of The Federalist, Alexander Hamilton and James Madison offered differing and conflicting accounts of the precise cause of factionalism and the manner in which the public will could safely be accommodated within the constitutional system. Alexander Hamilton believed that demagogic leadership was responsible for stirring up the otherwise politically apathetic citizenry into factional groups. The common citizen, he believed, was naturally uninterested in politics, preferring to focus on his own private life. This also meant, however, that the common citizens is relatively uninformed about political life and therefore susceptible to clever politicians know just how to “flatter [the people’s] prejudices and betray their interests.”[1] He even calls these petty politicians “parasites and sycophants” who are willing to sacrifice the permanent good of society in order to win a position of power for themselves. As such, Hamilton believed the key to a successful political system was constructing it in such a way that allowed better leaders, those who cared not about gaining temporary popularity, but about achieving great things for their country, to occupy positions of authority. He believed the presidency was the key to this: Public opinion could be unified around the person and character of the president, preventing faction so long as that office was held by a person of great vision and high ambition. As such, Hamilton put his faith in the Electoral College, the unlimited number of terms available to a president, and the robust powers of the office to attract the highest quality of leader.

James Madison, however, saw factionalism arising naturally, without any impetus from poor leaders. “The latent causes of faction” were “sown in the nature of man,” he wrote.[2] This mean that, whatever quality of leadership may exist, factions will always arise in popular governments. Therefore, they must be accommodated and moderated in the best way possible. Madison relied not on the president to do this, but a carefully crafted and limited legislature capable of refining the public will. Representatives would naturally reflect some of the biases of their constituents, but they would be placed in an environment which allowed for and encouraged healthy dialogue and compromise on the common good. Their terms would be just the appropriate length to provide a degree of independence from the factional will of the people, while still being ultimately answerable to it; the size of the legislature would be too large for casual intrigue and corruption, but too small to devolve into a mob; and the constitutional limitations on Congress’ power would mean representatives would be discussing broad, national issues and avoiding local concerns most likely to pit factions against one another.

Understanding The Federalist in this way allows it to illuminate questions which continue to press on us today: To what extent are the divisions in American politics caused by naturally arising identity and interest groups, and to what extent are they stirred up by the rhetoric of provocative leaders? Do we find the solution in unifying leaders, or in deliberation and dialogue? As is often the case, a careful reading of this great work can continue to offer wisdom and a framework within which to consider these political puzzles.

Dr. Grove’s full paper can be found here for those with access.

[1] The Federalist, No. 71

[2] The Federalist, No. 10

 

Presidential Emergencies: Constitutional Power or Congressional Dereliction?

by John Grove

Earlier this week, Professor Hubbard made the important observation that President Trump’s declaration of emergency must be considered within a historical and constitutional context. I disagree, however, with Professor Hubbard’s general view that the use of domestic emergency powers can be seen as an outgrowth of our constitutional system of separated powers, so long as it is utilized with circumspection and is subject to judicial review. Instead, I believe presidential emergencies are fundamentally at odds with the principle of the separation of powers and pose a significant challenge to that view of our constitutional system.

Professor Hubbard is correct to suggest that the constitutional framers expected the President to be able to act with speed and unity in times of national crisis. However, their final product does not contain any indication that presidents would, after the declaration of a crisis, have constitutional authority to exercise powers beyond those delegated by Article II.

The constitution itself does not grant any specific authority on the part of the executive to suspend the normal operation of law and take on new powers. If we are to find any such constitutional authority, it must be derived from Article II, Sec. 1, which states that the “The executive Power shall be vested in a President of the United States of America,” or Article II, Sec. 3 which states that the president “shall take care that the laws be faithfully executed.” This latter source I find untenable, as modern emergency declarations do not execute laws but alter them. It may be argued that identifying times of crisis and utilizing the whole force of the nation in the manner best suited to address that crisis is an inherent part of “executive power” and, therefore, is constitutionally assigned to the president by Article II, Sec. 1, however.

There may be some evidence for this. It has long been argued that there are certain exigencies to which a legislative body, with its deliberate and slow character, cannot adequately respond. John Locke, for instance, argued that the executive authority possessed “prerogative” powers to act for the good of society outside the established law if and when the legislature is unable to act. Yet, by the time the constitution was ratified, prerogative powers in Great Britain had been systematized and limited, and many powers considered to be prerogatives of the Crown, such as the pardon power and refusal of the royal assent (veto), when incorporated into the American constitution, were specifically codified and listed. They were not left to the discretion of the president. Furthermore, the only power the constitution specifically recognizes to suspend the normal legal order in time of crisis is the authority to suspend habeas corpus. This is, however (Abraham Lincoln’s example notwithstanding), granted to Congress in Article I, not to the president.

While presidents continue to make rhetorical appeals to an inherent constitutional authority to declare emergencies, most declarations (and, indeed, all which abide by the requirements of the National Emergencies Act), rely upon specific statutes passed by Congress which authorize presidential actions in certain circumstances. Here, I believe, is the real origin of contemporary emergency declarations. Over the years, Congress has regularly and willingly ceded its decision-making authority to the executive for the sake of ease, efficiency and flexibility. This is not limited to times of emergency, as the vast majority of domestic regulation empowers executive branch agencies to decide, through administrative rule-making, substantive regulations. Declarations of emergency merely highlight this tendency in starker relief. The separation of powers has some drawbacks and one of them is that it makes it difficult to speedily adopt new policies. The regular use of national emergencies addresses this problem, but it does so from outside the framework of separated powers, as it allows for the executive branch to exercise legislative power.

Consider the National Emergencies Act. This law was intended as a restriction on presidential authority to declare emergencies, yet it still authorized the president, without Congressional input, to unilaterally decide when an emergency exists, and to identify what powers he would wield to rectify it: A remarkable power. Congress initially seemed to understand just how much authority they were ceding to the president, as the original version of the National Emergencies Act allowed Congress to override a president’s declaration of emergency with a simple majority vote of both houses (the president being unable to veto the resolution). In 1983, however, the Supreme Court ruled that Congress could not simply abolish the presidential veto for certain acts of Congress, and found that portion of the act unconstitutional. The Court, thereby, made Congress choose: Either allow the president unilateral authority to declare an emergency – knowing it can only be rejected by overriding the president’s veto – or refuse to allow the executive to usurp your legislative authority. Congress chose the former and amended the National Emergencies Act to allow presidents to veto a Congressional resolution overruling an emergency declaration, essentially removing Congress’s oversight of such acts. This is what happened last week.

Another difficulty that arises from viewing presidential emergencies as simply one part of the system of separated power is the role of the courts. Professor Hubbard suggests that the Supreme Court ought to have final say on whether a president has overstepped his constitutional authority in a given emergency, just as it does on other separation of powers issues. But the Court can and should not play arbiter of what constitutes a national emergency or crisis. This is the essence of what the Court has called a “political question” with no clear legal answer. What does “crisis” mean? What circumstances justify a new, immediate and extra-legislative response? These are questions with no legal or constitutional answer and ought to be reserved for the political branches of government to decide. The Court should, of course, police the actions presidents take in the name of a national emergency to protect the rights of citizens, as it most famously did in the Youngstown Sheet and Tube Company case, but it cannot take it upon itself to decide what does and does not constitute an emergency.

This brings us back to Congress. It is Congress which possesses the constitutional authority to decide what policies and funding are appropriate in what circumstances, and it is Congress which ought to restrain presidential actions. Long ago, executive prerogative was justified by observing that legislatures were often not in session and could not easily be recalled to address a pressing crisis. In the age of internet communication, cell phones and air travel, we ought to consider whether this is still a necessity, or whether it might not be appropriate for Congress to retake its legislative authority.

Court Watching: Madison v. Alabama

“Court Watching” will be a regular series on Reflections. The purpose of these essays is to inform the general public on the important constitutional questions being considered by the U.S. Supreme Court in its current term. Often, journalistic reporting on the Court focuses heavily, or even exclusively on the practical outcomes of the cases before the Court. We’re told whether a decision is a “pro-Trump” or “anti-Trump” decision, and what immediate impact the decision may have, but the legal and constitutional questions the court has wrestled with are understated, to say the least. Often, stories about a decision of the Court fail to even mention the name of the case! This continuing series of essays will attempt to explain, in layman’s terms, the constitutional issues the Supreme Court is dealing with: What part of the Constitution is being debated? What have previous court cases said about the issue? What are the arguments on both sides? Hopefully, this will lead to a greater understanding of current constitutional debates, and respect for differing views of governmental powers and constitutional rights.

by John Grove

Madison v. Alabama

Vernon Madison was, after several trials, convicted of shooting and killing a police officer in 1985. The judge in the final trial overruled a jury’s recommendation and imposed the death penalty on Madison in 1994. While on death row, Madison has suffered several strokes and has significantly diminished mental capacity.

The Constitutional Question:

The Constitution’s Eighth Amendment forbids the imposition of “cruel and unusual punishments.” Determining what constitutes “cruel and unusual,” however, has been a difficult task. As far back as 1958, in Trop v. Dulles, the Supreme Court has held that the meaning of “cruel and unusual” should be derived from the “evolving standards of decency which mark the progress of an evolving society,” rather than from the meaning those words held at the time of the Amendment’s ratification. Creating firm standards to match that abstract (and, critics might argue, amorphous) language, however, has often been a difficult task for the Court.

For this case, the standard at question comes from two important cases: Ford v. Wainwright (1986) and Panetti v. Quarterman (2007). In these cases, the Court determined that it was a violation of the Eighth Amendment to execute someone who was “insane” or had delusions at the time of execution. Both sides in Madison accept the standard which the latter of these two cases set forward: If a person does not have a “rational understanding of the State’s reason for his execution,” that person cannot be executed. They differ, however, on whether someone who has dementia and cannot remember his crime, yet can understand what the state claims he did and can understand why he is being executed has such a “rational understanding.”

It is important to note that this case is not about the execution of a person who had dementia at the time of the crime. Mr. Madison did not. Rather, it is about whether it is cruel and unusual to execute someone who, because of dementia, cannot remember the crime for which he is being executed.

The Arguments

Interestingly, both sides at oral argument agreed that vascular dementia could, indeed, trigger the protections outlined in Ford and Panetti, even though those two cases limited themselves to cases of insanity and delusions. The two sides differed, however, on whether Madison’s dementia actually prevented a rational understanding of his crime and his punishment. Madison’s attorneys argued that his condition meets the standard established by Panetti. Namely, that Madison’s dementia makes it difficult for him to orient himself and fully understand the circumstances he is in. Like an Alzheimer’s patient, he may understand something one day, and not understand it the next. They pointed to many everyday aspects of his prison life, such as his inability to remember that he has a toilet in his cell, as evidence that he is simply incapable of understanding his circumstances.

The state of Alabama, on the other hand, argued that Madison’s condition does not prevent him from understanding the rationale for his punishment. They cited medical testimony that Madison understood that he was convicted of shooting a police officer, and that his execution was because of that action. Further, the state argued that at least one element of Madison’s case – the lack of memory of the crime – is an unworkable standard, as there is no way for courts to know for certain whether a defendant has actually forgotten a crime.

What this case seems to boil down to is whether it is cruel and unusual to execute someone who can understand the purpose of his sentence and its consequences, but who cannot, perhaps, hold on to that information and fully grasp the situation he is in. Given the disagreements over Madison’s actual mental abilities, it is also possible that the Court may send the case back down to lower courts to determine whether Madison actually is incompetent to be executed, given the agreement that the Panetti standard goes beyond insanity and delusions, and does indeed apply to people with dementia.

 

Oral arguments for this case were heard in October, so a decision is expected soon. As will be the case with all of our “Court Watching” essays, when the Court hands down its decision, we will write an update and explain the Court’s reasoning. Stay tuned!