NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor John O. McGinnis, who is the George C. Dix Professor in Constitutional Law at Northwestern University School of Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: How did the Constitution address the weaknesses of the Articles of Confederation? Today we’re speaking with Professor John McGinnis, who explains why the Founders gave the federal government necessary but enumerated powers. How do checks and balances work in our Constitution? JOHN MCGINNIS: Structure of the Constitution matters because it orients our politics in a day to day basis. Right? It gives rules of the road for politics. And that's very important, to have hard-wired rules about the nature of procedures, the nature of the different branches, is extremely important. Because otherwise politicians could make those institutions up for grabs. And that would be a great threat to stable, indeed stable and effective, government. So that's one reason for structure. Another is to create balanced government, to create a system of federalism, a system of separation of powers. And that creates a government that is internally balanced and internally balanced against itself. The federal government, the framers recognized, was giving a lot of authority to a potentially much more powerful government. And that's why it created a balanced and structured government, to make sure that within the government it would have its own checks and balances. It came from the nature of that awesome power that it recognized the federal government would have. And finally, the structure of government is really not independent of our rights. The structure of government is all about protecting our rights. The fact that you need to get a bill through two houses, signed by the president, and have the president decide to execute it against you, and have the judiciary defend you, slows down government. And is going to be a protection of your rights. The fact that we have a federal system, where one can exit from one state to another, is a very important protection of rights. Now, if you don't like the states, but the governors of the states have to recognize that you may, there's a threat of that exit. So it's important to understand the structural constitution is also a rights constitution. PUBLIUS: Thanks for that explanation of why structure matters. Now, can you tell us more about that structure? How does it work to create the ‘balanced’ government’ you mentioned a few moments ago? JOHN MCGINNIS: Well, checks and balances constrain government simply by diffusing government power. And so it means that it's the opposite of having all power in one individual. And so it allows the fact of human disagreement to work for one's freedom. That's at its most basic level. Because as Madison famously said in Federalist 51, "Ambition checks ambition." And one way to think of this is that the framers were very well aware, in fact they said that fame is the passion of the most noblest minds. They recognized that there are people who are ambitious for fame. And that had some good consequences. They were ambitious for leaving society better off. On the other hand, some bad consequences. They might like to get fame through war, through oppression, through all sorts of mechanisms. And the only way of dealing with this class of people was in some sense to pit them against one another, to give them different realms of authority. And so that's an important way that the checks and balances work. The checks and balances also work, and I think this is not emphasized enough, through time. So we have a House that is elected every two years. We have a Senate of every six years. A president who's every four years. We always seem to be having elections. And that's important, because people's passions can be very evanescent. And if we had a structure of government which didn't have the check and balance of different elections. That would be very dangerous to people, because they need to think again. So the checks and balances are not only checks and balances of individual government actors in the constitution. They're checks and balances against the people themselves. And that's very important to understand. It's also the judiciary can be understood in that way. These are people with life tenure who are appointed ... who are enforcing a constitution that's hopefully represents a much greater consensus. And that's also a check against the people themselves. Famously said that the role of judicial review is to protect Peter Sober from Peter Drunk. And so when the checks and balances are discussed as if it's all about protecting against rulers, that's only half the story. The people themselves, as the framers well knew, were an unruly bunch. And they needed to have a check and balance system to prevent their own passions from spilling over to their own danger. So the problem that the founders of our constitution faced was it certainly was well known to have a balanced government, checks and balances in governments. But previously the idea had been to use social classes to do that. We had a House of Lords in England, the sort of rich defined by land at the time. They had their own political power. And the monarchical principle, hereditary monarch. But of course this was dependent on different social classes. And the United States did not have that. It had one social class. So the question was how to construct a balanced government, one with checks and balances, in a world where there was a uniform ... there were no class divisions, there was no monarchical principle. Some people thought it was unnecessary. In what was called the critical period, the period before the Constitution was created, some state constitutions had unicameral legislatures. They gave a lot of direct, more direct, authority to the people. PUBLIUS: Could you tell us more about this period? The drafters of the Articles of Confederation were hesitant to borrow too much from the British system, right? In that, they hesitated to create strong federal powers resembling the Monarchy or even Parliament, instead giving states and individuals more power. But this lead to some drawbacks. What were they? And how did they lead to the drafting of the Constitution we have today? JOHN MCGINNIS: The Articles of Confederation were thought to lead to two important dangers. One was the Articles of Confederation had no permanent executive. And the concern, and I think this may have been the more important of the two concerns, was that without a permanent executive, one that could control the military, the United States was a much weaker actor than it had to be. And we must remember, the United States was not the United States of today. There were many more powerful actors. The idea was the British might come back. But of course there was Spain, there was France. All of these actors were much larger numbers of men at arms. And so if the United States couldn't deter them through the sense that they could put an army on the field that wouldn't depend on requisitions from various states, it wouldn't have its own source of money, that it wouldn't have a unified and permanent command, this was a huge risk. So I think that, it was the greatest concern was that the United States might not continue as a going concern unless there was a much better way to organize its defense. The second reason that it was thought to be not a success, and I think this was less important, but still many thought that the United States was not working well as a commercial republic. It was not working well for a few reasons. One was that some states were putting up trade barriers against one another, and that was limiting the extent of the market. And therefore the extent of commercial vibrancy. And moreover some states as well were subject to passions to relieve debtors of their obligations. And so of course that meant people weren't very eager to invest if they couldn't be very confident they would be paid back. And so the real reason, I think, for the Constitution, was first to create a government that empowered national defense. And the second was to create a commercial republic. And so they had to recreate a balanced government in the new world of the lack of social classes. And so the way they did that was to create, to use, different branches of government. And still have them all, in some sense, responsible to a democratic element. But to a different kind of democratic element. The House very consciously was close to the people, most frequently elected. The Senate a little less so. The presidency had an indirect election through the presidential electors. The judiciary was life tenured. All of these were decisions that reflected the idea that they needed to break up government. Break it up precisely also because of the leaders, and also the concern that there would be sort of one social class that actually might make a greater danger of unitary government, the greater danger of oppression. And the way they did that was to actually create and lay out different branches of the federal government. That was one way they did it. The other way they did it was just to make sure that the federal government had only enumerated powers. The other great theory was we're going to have to split, as Justice Kennedy said, the atom of sovereignty. And that would be another constraint on the government. And that was a really kind of a new idea. Maybe a new idea that came from necessity, because there were still local powers, local government, that really weren't going to be happy with a unified national government. But that was the second way of creating a balanced government in a new world without social classes. Well, the Constitution creates a permanent executive. It creates a permanent judiciary. So it creates actually three branches of government. And so that does two things simultaneously. It seems to create both more different centers of power, but for certain kinds of actions it creates more effective government. It puts the president famously as commander in chief. It makes the judiciary a permanent watchdog over the structure of government. Precisely because the government becomes more intricate, there needs to be a judiciary to sort out the divisions within the government. So that's one matter it does. The other matter it does is that it actually gives the government certain powers, as I suggest, that really go to creating or preserving a commercial republic. The commerce clause, a law of uniform bankruptcy. A post office might not seem very important to us today, but to have interchange among different states. Also to have direct ability to do some taxation to support, I think, primarily a military. So I think you can think of, really, all of the enumerated powers of the federal government as in one way or another contributing to a defense of the United States or a better commercial republic. Those are the overwhelming objectives of the original Constitution. PUBLIUS: This view, at the time of the Founding, wasn’t unanimously popular, was it? Weren’t there some objections to the powers given to the Federal government? JOHN MCGINNIS: Well, the greatest concern of the anti-Federalists was that ultimately this would lead to what they called consolidated government. That there would be essentially a mass of powers in the federal government, and the states would really have very little powers and that would also threaten tyranny because there'd be so many powers in the federal government. And they thought this for a variety of reasons. They thought, first of all, that the enumerated powers were not sufficiently enumerated. And secondly they were very worried about the federal judiciary, because their idea of the federal judiciary, and they seemed to be early people of institutional concerns about public choices and institutional design, the federal judiciary being federal actors would be interested in consolidating the federal government for their own purposes. And so they were just not at all confident that the enumerated powers would do the jobs, because it was imperfectly enumerated. And because the custodians of that enumeration really were not impartial. I mean, just sociologically there were many people who were powerful in their states who didn't want to see their states disappear. But it was also inamorato because people were concerned about giving too much power to the federal government leaving power to the states, not only meant the federal government was limited. It meant it was another source of attachment that people had that was not to the federal government, that would be a restraint on the federal government. I think that's very important to understand, particularly socially, that many people thought their primary allegiance was to their own state. And I think the Constitution was playing off of that. Was playing off of the idea that, against the fears of the anti-Federalists that it would all be consolidated, was that most citizens would consider their primary attachment to their states. They would look at the federal government as a kind of necessary evil. And that would be a constraint on going too far from the enumerated powers. So they were trying to build on what they had. They were building on what they had, which was state attachments. Which was going to be not only as an institution, but as an allegiance to constrain federal power. PUBLIUS: But creating three branches of government weren’t completely new, were they? How did they appear in the British Constitution? How similar were they? And how were they different? JOHN MCGINNIS: All of the branches had their ancestors, as it were, in the British constitution. One way of thinking of the British constitution in relation to the American Constitution, is at least the executive power of the king was largely given to the president, and then some exceptions were made. But and then, of course, the president was not a hereditary principle. Which was also a way of constraining the executive power. But there's not doubt that the model for the nature of executive power came from the British constitution. Bicameralism also came from the British constitution. There was a House of Lords, there was a parliament. But again, because there was no social divisions, that wasn't the way they structured it. They structured it differently. But having two houses was extremely important, because it allowed the framers also to give greater recognition to state authority. Because they, of course, proportioned the House of Representatives by popular proportions and the Senate by the state. So the second house serves a lot of different functions. It served the function of just having another house to restrain it, but also to giving greater weight to states. And then finally I think the framers also thought ... well, we're not different classes, they also thought that senators would be ... tend to be a more elite group who are elected. So they didn't want to completely give up the idea that there would be certain very important people elected, who I think they thought might well be senators. So this was all patterned, but adapted to a new world without class divisions. Perhaps the greatest innovation was to set up a ... to have an Article III, because of course while there was a judiciary in England, its rights and its duties were perhaps a little less unclear. They were clear by tradition, but they really hadn't been set up so formally in law. And that, I think, was a requirement of the system, because ... for two reasons. One, I think the intricacy of the design meant that they thought there'd be some real questions that would arise. And then also I think some thought that the judiciary would be a way of protecting some of the commercial republic. In other words, that clause in the original Constitution, like the contracts clause that protected the obligation of contracts, would just be paper if the judiciary was not there to enforce that against debtor relief legislation. And so that was, I think, the way of thinking about judiciary was not so much in the modern way of protecting individual rights as we think of them. But as protecting the structure of the Constitution and protecting, essentially, the foundations of a commercial republic. PUBLIUS: Can you tell us more about how the Separation of Powers works? In creating three branches of government, the Founders divided power, and they also gave individual branches enumerated powers, right? What are advantages to that setup? How do they check and balance one another? JOHN MCGINNIS: The Constitution goes back to an idea that preexists the Constitution, was that it's good to have a government of separated powers for two reasons. Partly because of the conflict that it engenders, which is the same as the idea we want conflict from the federal and state government, but also because we're going to have different competencies in the different branches of government. So the idea is that, to represent the people and the various ideas and interests, well, the legislature is best at doing that. Actually, we want to have many people to do that, because otherwise it can be hard to represent all of their interests. And we want to have quite a free form, relatively freeform. They're going to pass legislation after deliberation, and they're going to have powers to, at least along any subject matter, as long as they're given authority to do so, to do so as they wish. With respect to the executive, the idea is, well, it's the legislature is not good at executing the law. First of all, it doesn't have really the bureaucracy to do so. Moreover, it doesn't even have the standards and even impartiality do so. The very kind of interests may make it very likely to be not a disinterested executer of the law. So that's one aspect to it. Now also, the executive allied with that is thought to be very important in carrying out the defense of the realm. So the executive is, interestingly, not just about low execution, but it's also about the idea of defense, what was called the confederative of power in lock. And so those are really joined together in the executive as areas of competency. And then the judiciary is thought to be the most dispassionate branch, or in Federalist 78, the least dangerous branch. The branch that can be trusted with protecting the way the law is carried out. And, in our structure of government, because we have a complicated structure of government, being the arbiter in determining how the various parcels are going to be interpreted. Well, one way of thinking about it is that the idea of having separated powers and separated powers that are enforced by the judiciary, is you prevent a cartel against the people. You might think that the rulers, I think this is how often the framers thought about them, might sort of gang up on the people. But if they're actually given provinces, they may become jealous of those provinces. Moreover, they're prevented from entering other provinces. They really can't agree to exercise power jointly. And so it's an idea that to prevent trades among the different branches, because even if that leads to more efficient government, in general economics, we think trade is great. The combination is great, as the court has often emphasized when talking about the separation of powers, efficiency is not the only objective. So while we have the specializations lead to some kinds of efficiency, the division may lead to inefficiency, which is a price we're willing to pay, for the conflict it engenders, and also simply the diminution of unitary power that it enforces. You have to have all three branches acting together. So you have to have the congress pass some legislation to trench on your rights, very broadly understood. Then the executive has to decide to enforce that legislation. And then, the judiciary has to say that that enforcement is, not only Constitutional, but say that it's within the bounds of the law, that they've applied the right law to you. So there are three stages at which your rights are protected. And that, I think, is not emphasized enough, but we're so used to that idea. But for much of human history, there wasn't that. If I might make an anecdote. One time I was traveling in Syria, and I thought it was quite extraordinary that the president who then was, al-Assad, over parliament. He was represented as a parliamentarian. When you got to his executive, he was represented as executive. And actually, there he was a judge, being in the cloak of the judge. So that really brought home to me that it really is not to be dismissed. That we have to persuade, not only three different people, but three different groups of people in an institution that have shaped their interests differently, before our rights can be trenched on. That is an extremely important aspect of the Constitution that, at least so far, is extremely important. That may sometimes be raising questions about how far we have it, or issues raised by the rise of the administrative state. But that in ordinary legislation, and certainly the model that the founders had of government action to take away your rights, was a very important screen of protection. It was hard to pass legislation. In fact, you might say that bicameralism, really tricameralism, because you not only have to pass the house, the Senate, you've got to get the signature of the president, political scientists have seen that it acts like a sort of mild super majority rule. Really it's not enough to have a majority support for legislation. You really need to have more than majority of the country, so it creates a good deal of inertia. So this is two important protections. One, you have to think of the separation of powers as a protection of federalism, because quite beyond the enumeration of powers, the fact is that it's hard to get federal legislation, and when you can't get federal legislations, the states can't act. And so, that's an important aspect. It's one of the most important aspects of the protection of federalism. Also, it's a protection of other kinds of social norms, right? In other words, there's markets, other norms of society that are not acted through government. If you had a government that could very easily act on whims, those other norms could be a more easily suppressed, or supplanted, or substituted for. And that's, in some sense, as important a protection of the states, and is actually proved maybe a more important production of the states, than the enumerated powers. So at least the classical view of the separation of powers in government is it means it's laborious government. It's time consuming government. It's government that may necessarily have to have a relatively limited agenda. That's a protection of liberty. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor John O. McGinnis, who is the George C. Dix Professor in Constitutional Law at Northwestern University School of Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. How did the Constitution address the weaknesses of the Articles of Confederation? Today we’re speaking with Professor John McGinnis, who explains why the Founders gave the federal government necessary but enumerated powers. How do checks and balances work in our Constitution? Structure of the Constitution matters because it orients our politics in a day to day basis. Right? It gives rules of the road for politics. And that's very important, to have hard-wired rules about the nature of procedures, the nature of the different branches, is extremely important. Because otherwise politicians could make those institutions up for grabs. And that would be a great threat to stable, indeed stable and effective, government. So that's one reason for structure. Another is to create balanced government, to create a system of federalism, a system of separation of powers. And that creates a government that is internally balanced and internally balanced against itself. The federal government, the framers recognized, was giving a lot of authority to a potentially much more powerful government. And that's why it created a balanced and structured government, to make sure that within the government it would have its own checks and balances. It came from the nature of that awesome power that it recognized the federal government would have. And finally, the structure of government is really not independent of our rights. The structure of government is all about protecting our rights. The fact that you need to get a bill through two houses, signed by the president, and have the president decide to execute it against you, and have the judiciary defend you, slows down government. And is going to be a protection of your rights. The fact that we have a federal system, where one can exit from one state to another, is a very important protection of rights. Now, if you don't like the states, but the governors of the states have to recognize that you may, there's a threat of that exit. So it's important to understand the structural constitution is also a rights constitution. Thanks for that explanation of why structure matters. Now, can you tell us more about that structure? How does it work to create the ‘balanced’ government’ you mentioned a few moments ago? Well, checks and balances constrain government simply by diffusing government power. And so it means that it's the opposite of having all power in one individual. And so it allows the fact of human disagreement to work for one's freedom. That's at its most basic level. Because as Madison famously said in Federalist 51, "Ambition checks ambition." And one way to think of this is that the framers were very well aware, in fact they said that fame is the passion of the most noblest minds. They recognized that there are people who are ambitious for fame. And that had some good consequences. They were ambitious for leaving society better off. On the other hand, some bad consequences. They might like to get fame through war, through oppression, through all sorts of mechanisms. And the only way of dealing with this class of people was in some sense to pit them against one another, to give them different realms of authority. And so that's an important way that the checks and balances work. The checks and balances also work, and I think this is not emphasized enough, through time. So we have a House that is elected every two years. We have a Senate of every six years. A president who's every four years. We always seem to be having elections. And that's important, because people's passions can be very evanescent. And if we had a structure of government which didn't have the check and balance of different elections. That would be very dangerous to people, because they need to think again. So the checks and balances are not only checks and balances of individual government actors in the constitution. They're checks and balances against the people themselves. And that's very important to understand. It's also the judiciary can be understood in that way. These are people with life tenure who are appointed ... who are enforcing a constitution that's hopefully represents a much greater consensus. And that's also a check against the people themselves. Famously said that the role of judicial review is to protect Peter Sober from Peter Drunk. And so when the checks and balances are discussed as if it's all about protecting against rulers, that's only half the story. The people themselves, as the framers well knew, were an unruly bunch. And they needed to have a check and balance system to prevent their own passions from spilling over to their own danger. So the problem that the founders of our constitution faced was it certainly was well known to have a balanced government, checks and balances in governments. But previously the idea had been to use social classes to do that. We had a House of Lords in England, the sort of rich defined by land at the time. They had their own political power. And the monarchical principle, hereditary monarch. But of course this was dependent on different social classes. And the United States did not have that. It had one social class. So the question was how to construct a balanced government, one with checks and balances, in a world where there was a uniform ... there were no class divisions, there was no monarchical principle. Some people thought it was unnecessary. In what was called the critical period, the period before the Constitution was created, some state constitutions had unicameral legislatures. They gave a lot of direct, more direct, authority to the people. Could you tell us more about this period? The drafters of the Articles of Confederation were hesitant to borrow too much from the British system, right? In that, they hesitated to create strong federal powers resembling the Monarchy or even Parliament, instead giving states and individuals more power. But this lead to some drawbacks. What were they? And how did they lead to the drafting of the Constitution we have today? The Articles of Confederation were thought to lead to two important dangers. One was the Articles of Confederation had no permanent executive. And the concern, and I think this may have been the more important of the two concerns, was that without a permanent executive, one that could control the military, the United States was a much weaker actor than it had to be. And we must remember, the United States was not the United States of today. There were many more powerful actors. The idea was the British might come back. But of course there was Spain, there was France. All of these actors were much larger numbers of men at arms. And so if the United States couldn't deter them through the sense that they could put an army on the field that wouldn't depend on requisitions from various states, it wouldn't have its own source of money, that it wouldn't have a unified and permanent command, this was a huge risk. So I think that, it was the greatest concern was that the United States might not continue as a going concern unless there was a much better way to organize its defense. The second reason that it was thought to be not a success, and I think this was less important, but still many thought that the United States was not working well as a commercial republic. It was not working well for a few reasons. One was that some states were putting up trade barriers against one another, and that was limiting the extent of the market. And therefore the extent of commercial vibrancy. And moreover some states as well were subject to passions to relieve debtors of their obligations. And so of course that meant people weren't very eager to invest if they couldn't be very confident they would be paid back. And so the real reason, I think, for the Constitution, was first to create a government that empowered national defense. And the second was to create a commercial republic. And so they had to recreate a balanced government in the new world of the lack of social classes. And so the way they did that was to create, to use, different branches of government. And still have them all, in some sense, responsible to a democratic element. But to a different kind of democratic element. The House very consciously was close to the people, most frequently elected. The Senate a little less so. The presidency had an indirect election through the presidential electors. The judiciary was life tenured. All of these were decisions that reflected the idea that they needed to break up government. Break it up precisely also because of the leaders, and also the concern that there would be sort of one social class that actually might make a greater danger of unitary government, the greater danger of oppression. And the way they did that was to actually create and lay out different branches of the federal government. That was one way they did it. The other way they did it was just to make sure that the federal government had only enumerated powers. The other great theory was we're going to have to split, as Justice Kennedy said, the atom of sovereignty. And that would be another constraint on the government. And that was a really kind of a new idea. Maybe a new idea that came from necessity, because there were still local powers, local government, that really weren't going to be happy with a unified national government. But that was the second way of creating a balanced government in a new world without social classes. Well, the Constitution creates a permanent executive. It creates a permanent judiciary. So it creates actually three branches of government. And so that does two things simultaneously. It seems to create both more different centers of power, but for certain kinds of actions it creates more effective government. It puts the president famously as commander in chief. It makes the judiciary a permanent watchdog over the structure of government. Precisely because the government becomes more intricate, there needs to be a judiciary to sort out the divisions within the government. So that's one matter it does. The other matter it does is that it actually gives the government certain powers, as I suggest, that really go to creating or preserving a commercial republic. The commerce clause, a law of uniform bankruptcy. A post office might not seem very important to us today, but to have interchange among different states. Also to have direct ability to do some taxation to support, I think, primarily a military. So I think you can think of, really, all of the enumerated powers of the federal government as in one way or another contributing to a defense of the United States or a better commercial republic. Those are the overwhelming objectives of the original Constitution. This view, at the time of the Founding, wasn’t unanimously popular, was it? Weren’t there some objections to the powers given to the Federal government? Well, the greatest concern of the anti-Federalists was that ultimately this would lead to what they called consolidated government. That there would be essentially a mass of powers in the federal government, and the states would really have very little powers and that would also threaten tyranny because there'd be so many powers in the federal government. And they thought this for a variety of reasons. They thought, first of all, that the enumerated powers were not sufficiently enumerated. And secondly they were very worried about the federal judiciary, because their idea of the federal judiciary, and they seemed to be early people of institutional concerns about public choices and institutional design, the federal judiciary being federal actors would be interested in consolidating the federal government for their own purposes. And so they were just not at all confident that the enumerated powers would do the jobs, because it was imperfectly enumerated. And because the custodians of that enumeration really were not impartial. I mean, just sociologically there were many people who were powerful in their states who didn't want to see their states disappear. But it was also inamorato because people were concerned about giving too much power to the federal government leaving power to the states, not only meant the federal government was limited. It meant it was another source of attachment that people had that was not to the federal government, that would be a restraint on the federal government. I think that's very important to understand, particularly socially, that many people thought their primary allegiance was to their own state. And I think the Constitution was playing off of that. Was playing off of the idea that, against the fears of the anti-Federalists that it would all be consolidated, was that most citizens would consider their primary attachment to their states. They would look at the federal government as a kind of necessary evil. And that would be a constraint on going too far from the enumerated powers. So they were trying to build on what they had. They were building on what they had, which was state attachments. Which was going to be not only as an institution, but as an allegiance to constrain federal power. But creating three branches of government weren’t completely new, were they? How did they appear in the British Constitution? How similar were they? And how were they different? All of the branches had their ancestors, as it were, in the British constitution. One way of thinking of the British constitution in relation to the American Constitution, is at least the executive power of the king was largely given to the president, and then some exceptions were made. But and then, of course, the president was not a hereditary principle. Which was also a way of constraining the executive power. But there's not doubt that the model for the nature of executive power came from the British constitution. Bicameralism also came from the British constitution. There was a House of Lords, there was a parliament. But again, because there was no social divisions, that wasn't the way they structured it. They structured it differently. But having two houses was extremely important, because it allowed the framers also to give greater recognition to state authority. Because they, of course, proportioned the House of Representatives by popular proportions and the Senate by the state. So the second house serves a lot of different functions. It served the function of just having another house to restrain it, but also to giving greater weight to states. And then finally I think the framers also thought ... well, we're not different classes, they also thought that senators would be ... tend to be a more elite group who are elected. So they didn't want to completely give up the idea that there would be certain very important people elected, who I think they thought might well be senators. So this was all patterned, but adapted to a new world without class divisions. Perhaps the greatest innovation was to set up a ... to have an Article III, because of course while there was a judiciary in England, its rights and its duties were perhaps a little less unclear. They were clear by tradition, but they really hadn't been set up so formally in law. And that, I think, was a requirement of the system, because ... for two reasons. One, I think the intricacy of the design meant that they thought there'd be some real questions that would arise. And then also I think some thought that the judiciary would be a way of protecting some of the commercial republic. In other words, that clause in the original Constitution, like the contracts clause that protected the obligation of contracts, would just be paper if the judiciary was not there to enforce that against debtor relief legislation. And so that was, I think, the way of thinking about judiciary was not so much in the modern way of protecting individual rights as we think of them. But as protecting the structure of the Constitution and protecting, essentially, the foundations of a commercial republic. Can you tell us more about how the Separation of Powers works? In creating three branches of government, the Founders divided power, and they also gave individual branches enumerated powers, right? What are advantages to that setup? How do they check and balance one another? The Constitution goes back to an idea that preexists the Constitution, was that it's good to have a government of separated powers for two reasons. Partly because of the conflict that it engenders, which is the same as the idea we want conflict from the federal and state government, but also because we're going to have different competencies in the different branches of government. So the idea is that, to represent the people and the various ideas and interests, well, the legislature is best at doing that. Actually, we want to have many people to do that, because otherwise it can be hard to represent all of their interests. And we want to have quite a free form, relatively freeform. They're going to pass legislation after deliberation, and they're going to have powers to, at least along any subject matter, as long as they're given authority to do so, to do so as they wish. With respect to the executive, the idea is, well, it's the legislature is not good at executing the law. First of all, it doesn't have really the bureaucracy to do so. Moreover, it doesn't even have the standards and even impartiality do so. The very kind of interests may make it very likely to be not a disinterested executer of the law. So that's one aspect to it. Now also, the executive allied with that is thought to be very important in carrying out the defense of the realm. So the executive is, interestingly, not just about low execution, but it's also about the idea of defense, what was called the confederative of power in lock. And so those are really joined together in the executive as areas of competency. And then the judiciary is thought to be the most dispassionate branch, or in Federalist 78, the least dangerous branch. The branch that can be trusted with protecting the way the law is carried out. And, in our structure of government, because we have a complicated structure of government, being the arbiter in determining how the various parcels are going to be interpreted. Well, one way of thinking about it is that the idea of having separated powers and separated powers that are enforced by the judiciary, is you prevent a cartel against the people. You might think that the rulers, I think this is how often the framers thought about them, might sort of gang up on the people. But if they're actually given provinces, they may become jealous of those provinces. Moreover, they're prevented from entering other provinces. They really can't agree to exercise power jointly. And so it's an idea that to prevent trades among the different branches, because even if that leads to more efficient government, in general economics, we think trade is great. The combination is great, as the court has often emphasized when talking about the separation of powers, efficiency is not the only objective. So while we have the specializations lead to some kinds of efficiency, the division may lead to inefficiency, which is a price we're willing to pay, for the conflict it engenders, and also simply the diminution of unitary power that it enforces. You have to have all three branches acting together. So you have to have the congress pass some legislation to trench on your rights, very broadly understood. Then the executive has to decide to enforce that legislation. And then, the judiciary has to say that that enforcement is, not only Constitutional, but say that it's within the bounds of the law, that they've applied the right law to you. So there are three stages at which your rights are protected. And that, I think, is not emphasized enough, but we're so used to that idea. But for much of human history, there wasn't that. If I might make an anecdote. One time I was traveling in Syria, and I thought it was quite extraordinary that the president who then was, al-Assad, over parliament. He was represented as a parliamentarian. When you got to his executive, he was represented as executive. And actually, there he was a judge, being in the cloak of the judge. So that really brought home to me that it really is not to be dismissed. That we have to persuade, not only three different people, but three different groups of people in an institution that have shaped their interests differently, before our rights can be trenched on. That is an extremely important aspect of the Constitution that, at least so far, is extremely important. That may sometimes be raising questions about how far we have it, or issues raised by the rise of the administrative state. But that in ordinary legislation, and certainly the model that the founders had of government action to take away your rights, was a very important screen of protection. It was hard to pass legislation. In fact, you might say that bicameralism, really tricameralism, because you not only have to pass the house, the Senate, you've got to get the signature of the president, political scientists have seen that it acts like a sort of mild super majority rule. Really it's not enough to have a majority support for legislation. You really need to have more than majority of the country, so it creates a good deal of inertia. So this is two important protections. One, you have to think of the separation of powers as a protection of federalism, because quite beyond the enumeration of powers, the fact is that it's hard to get federal legislation, and when you can't get federal legislations, the states can't act. And so, that's an important aspect. It's one of the most important aspects of the protection of federalism. Also, it's a protection of other kinds of social norms, right? In other words, there's markets, other norms of society that are not acted through government. If you had a government that could very easily act on whims, those other norms could be a more easily suppressed, or supplanted, or substituted for. And that's, in some sense, as important a protection of the states, and is actually proved maybe a more important production of the states, than the enumerated powers. So at least the classical view of the separation of powers in government is it means it's laborious government. It's time consuming government. It's government that may necessarily have to have a relatively limited agenda. That's a protection of liberty. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!