The Federalist. Hamilton Alexander
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With Federalist No. 67, Publius begins an eleven-essay survey of various aspects of the presidency. In the opening essay, he strives to dispel the charge leveled by many Anti-Federalists that under the proposed Constitution the president will have an authority and status akin to that of the most powerful monarchs. Such a depiction he regards as utterly without foundation. To illustrate the absurdity of these charges, he refutes the claim that the president may fill “casual vacancies in the senate.”
After setting forth (in No. 68) the virtues of the electoral college for electing a president—a process that “affords a moral certainty, the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”—Publius explores (No. 69) the “real character of the proposed executive” by comparing his status and powers with those of the king of Great Britain and the governor of New York. To counter the charge that the president is little more than an “elective king,” he discusses his term of office, his liability to impeachment and removal, his participation in the legislative process, his powers as commander-in-chief, and his powers of appointment and treaty making. He concludes that it is questionable whether the president’s authority even exceeds that of the governor of New York, but that, in any event, “there is no pretence for the parallel which has been attempted between him [the president] and the king of Great Britain.”
Nevertheless, Publius does emphasize the need for energy in the executive to secure the blessings of good government and liberty. In Federalist No. 70, he identifies four ingredients of an energetic executive: “unity; duration; an adequate provision for its support; [and] competent powers.” In the remaining essays on the presidency he deals with these ingredients, beginning first with the need for “unity.” On this score he maintains that both reason and experience clearly speak against having plural executives or an executive council. He argues strenuously and at length against the idea of a council whose concurrence would be required for the exercise of executive functions. Such an arrangement, he observes, would make it difficult, if not impossible, for citizens to fix responsibility for fraud, misconduct, and incompetence. Moreover, he concludes, this lack of accountability would render any such council a greater threat to liberty than would a single executive.
In discussing “duration” (No. 71), the second ingredient of an energetic executive, Publius defends the four-year term of office as contributing to the firmness of the executive, a firmness that would allow the executive to block oppressive and unjust measures in order to give the people the “time and opportunity for more cool and sedate reflection.” What is more, he believes such a term is essential if the executive is to act independently of Congress, particularly the popularly elected branch whose members “sometimes . . . fancy, that they are the people themselves.” Given these views, it is hardly surprising that Publius vigorously defends the view (No. 72) that the executive ought to enjoy indefinite reeligibility. He enumerates in some detail the potential “ill effects” that limitations on reeligibility would produce. He concludes by arguing that the presumed advantages of the principle of exclusion (“greater independence” and “greater security to the people”) are highly dubious.
The third ingredient of an energetic executive authority, “adequate provision for its support,” is discussed in essay No. 73 by taking note of the constitutional provision prohibiting an increase or decrease of presidential pay during the executive’s term of office. However, his major focus in this essay, and in those that follow, is on the fourth ingredient, “competent powers.” This, in turn, leads to an extensive discussion of the president’s veto power. He notes the imperative need for such a power to prevent legislative encroachment on the executive branch in order to preserve the separation of powers. He also sees the veto power as a means of curing the “inconstancy and mutability in the laws,” which he calls the “greatest blemish” on the character of the state governments. He looks upon the qualified veto as an encouragement for an otherwise reluctant chief executive to exercise this prerogative in questionable cases, because it lacks the finality of an absolute veto.
Continuing with his discussion of “competent powers” in Federalist No. 74, Publius turns to the president’s power as commander-in-chief, as well as his authority to require the “opinions, in writing” of his principal subordinates. The major portion of the essay, however, is devoted to his power “‘to grant reprieves and pardons.’” On this matter, he weighs the pros and cons of the argument that at least the concurrence of one chamber of the legislature should be required for pardons in the case of treason. On balance, he concludes, the need for flexibility and dispatch justifies vesting this authority solely with the executive. In No. 75 Publius examines the treaty-making power of the president by way of showing the appropriateness of the constitutional provisions relating to this authority. To the charge that the participation of the Senate in this process involves an undesirable mixture of legislative and executive powers he responds that the treaty-making power does not fit neatly into either the executive or the legislative branches, that it partakes of both. Moreover, he remarks, “the history of human conduct” indicates that the executive should not be able to exercise this whole power unilaterally. On the other hand, he observes, the Senate is not as suited as is the president for conducting treaty negotiations.
In the last two essays devoted to the presidency, Publius takes up the president’s power of appointment and the role of the Senate in this process. Nomination by the president and confirmation by the Senate, he contends in No. 76, have all the advantages of appointment by a single person while avoiding the factional strife that inevitably arises when assemblies are vested with the authority to appoint. Nomination by the president, he believes, will be tantamount to appointment. Though he recognizes that the Senate may reject the nomination—something he believes it would do infrequently in the absence of compelling reasons—the subsequent nominee would still be the preference of the president, not the Senate. In this vein he comments on the benefits that would result from Senate confirmation, not the least of which is that the mere possibility of rejection would serve as “a strong motive to care in proposing.” Finally, he sees little prospect that the president could use his powers of appointment “to corrupt or seduce a majority” of the senators.
Publius opens Federalist No. 77 by asserting that the Senate would have to consent to the removal of executive officers (a position rejected by the first Congress which, in effect, held that removal was an inherent executive power). The remainder of this paper, however, is devoted to defending the mode of appointment set forth in the proposed Constitution. In this regard, he dismisses as without foundation the contention that the Senate might be able to exercise an undue “influence [on] the executive.” He rejects any participation by the House of Representatives in the appointment process, because the “fluctuating” character of its large membership would destroy “the advantages of stability” and cause “infinite delays and embarrassments.” Toward the end of the essay, returning to a concern he discussed earlier in No. 70, he contends that the “structure and powers of the executive department” do “combine the requisites of safety, in the republican sense.” He cites, in this connection, the power of impeachment and removal and the concurrence of the Senate over those concerns where “abuse of the executive authority was materially to be feared.”
G. The Judiciary
In Federalist Nos. 78 through 83, Publius examines the third branch of government, the judiciary. The most significant of these essays is the first, in which he sets forth the case for judicial review, or what he describes as the power of the courts “to declare all acts [of the legislature] contrary to the manifest tenor of the Constitution void.”
In essay No. 78 Publius defends the constitutional provision for tenure during good behavior for justices. In the course of this defense, he notes the feebleness of the judiciary relative to the other branches of government: it has no control over either the “sword or the purse”; it “can take no active resolution whatever”; it “will always be the least dangerous to the political rights of the Constitution”; and it possesses “neither FORCE nor WILL, but merely judgment.” The national courts can pose a threat to the liberties of the people, he argues, only if they are united with either of the other two branches. Thus, he points out, there is a need for “PERMANENCY IN OFFICE”