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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Hello, Nia, how are you? It's been a while since we've recorded.
N. Rodgers: It has, but it's been weird. This has been weird, you went away, and then I went away, and then I went away, and then you went away, and you've had kid at camp, and I've been burying my head in the sand, not literally. That would be fun, but not literally. Now we are back to starting the fall. Listeners, Aughie said to me, "We never have finished the Federalist Paper series," and I was like, "You're right. We haven't." He said, "We probably ought to do that," and I said, "We probably should."
J. Aughenbaugh: I want to go back just a moment. All this time I've known you, you have secretly wanted to be ostrich like?
N. Rodgers: I have secretly wanted to build sand castles and do that thing where somebody covers you up with hot sand, like in spas, it looks like it would be marvelous. But I don't want to be so deep that I can't get out on my own. You know what I mean?
J. Aughenbaugh: You still want to be able to have some range of movement just in case.
N. Rodgers: Exactly. In case a shark comes, or in case land shark. You never know. Remember that from Saturday Night Live?
J. Aughenbaugh: Yes, I do.
N. Rodgers: Land shark. Anyway, that's a memory.
J. Aughenbaugh: Listeners, I was going to start this particular episode by boldly claiming to Nia that I'm not feeling very angelic. The reason why I was going to say that, which probably everybody who's known me would say, "Thank you, Captain Obvious," is that we're going to cover today Federalist Paper Number 51. This is probably the best known of the Federalist Papers, because this is James Madison's classic defense of separation of powers and checks and balances.
N. Rodgers: It's where he lays out his dream government.
J. Aughenbaugh: Yes. When listeners, you hear the phrase, the Madisonian model of democracy or the Madisonian model of government, Federalist 51 is that description. It's that explanation. In particular, he's got a number of well known quotes in Federalist 51. But the one that I was going to start with was his argument that if men were angels, there would be no need for government.
N. Rodgers: You don't think there's government in, anyway.
J. Aughenbaugh: Government in heaven?
N. Rodgers: Hierarchical.
J. Aughenbaugh: Government in heaven or hell? I'm not entirely sure. That will take us far afield from what we usually discuss on this podcast, Nia.
N. Rodgers: Yes. I'm just saying, you got to have order in some way.
J. Aughenbaugh: Whoa, actually, what you just said underscores Madison's argument. The anti-federalist, Nia, were claiming, one of the reasons why we oppose this proposed constitution is that the power of government is knowingly separate, but each of the branches can check one another, and that was highly unusual at the time. Madison's response was, we know historically that no matter what form of government, no matter how it's structured, those in government are not going to be angelic?
N. Rodgers: No. Because that phrase "power corrupts and absolute power corrupts absolutely" is endemic of human nature. It is very hard for a human who is handed all the power in the world, look at Presidents of the United States, to not overstep the boundaries of that power, because it's a heady thing to be in charge of it all.
J. Aughenbaugh: You start doing some good, and the people around you say, "Hey, Madam President."
N. Rodgers: The people love you, and everybody goes, you're so awesome, this was great, do more. You're like, I'll do more because that's human nature, I think. The other side of human nature is the assumption that I am always right and everybody else is always stupid. There's this human nature thing where you just assume that if you believe it, it must be right, it must be true. Very few people say, I believe things that are not true. That's not a thing people say. You know what I mean? People don't actually believe that Jackalopes are real, and they would never claim to believe a thing that isn't real is real, because they know it's not.
J. Aughenbaugh: No, actually, the criticism is of the converse, which is, because I believe it, it must be real.
N. Rodgers: Exactly. It must be true because I believe it. Why would I believe something that wasn't true? Except that you're wrong about something all the time, but it's hard for people. Especially people at a level of leading government, especially at an elite level of that power, I would imagine that it is even less likely that you would believe that you were mistaken, and you were going to do it anyway.
J. Aughenbaugh: No matter what form of government we're talking about, the government is given power over people. Now they're supposed to represent it in the case of a representative democracy, or even monarchs are supposed to rule for the betterment of society. In Federalist 51, Madison lays out separation of powers and checks and balances, which, listeners, Nia, we're all exposed to at a very early age. If you're Native born American, if you are transplanted to the United States. This is well known American civics.
N. Rodgers: There is an executive branch, there's a legislative branch, and there's a judicial branch. Those three branches, when we say checks and balances, they are able to say, "Whoa, you can't go that far, do that thing, that whatever, to another branch." The way the legislation does that with judicial is it makes a law. If the judicial branch says, "This thing is not legal," then Congress can say, "Then we'll make it legal." They can make a law to do that.
J. Aughenbaugh: Nia, you're jumping ahead.
N. Rodgers: Sorry.
J. Aughenbaugh: No, it's all right. To the checks and balances part. But the early part of Federalist 51 is Madison explaining in some ways, this new US federal government is not all that different than what was experienced in the colonies. Most of the colonies had three distinct branches. You had a governor who was the chief executive, you had a legislative branch, and you had a judicial branch. He said, "The only thing that is novel in this proposed Constitution is what you just mentioned, checks and balances." He goes, "That's what's unusual," and he goes, "and let me explain why we added this feature. We added this feature because we know historically that people who occupy government positions will be ambitious. Now, we could hope for the better angels of their natures."
N. Rodgers: That's not very realistic.
J. Aughenbaugh: That's where he said, "If men were angels, we wouldn't have government anyways." We need government to provide order to the chaos of life, to provide stability, to provide security. For some of you listeners, you're probably having post-traumatic stress right now because now you're being reminded of political theory. Now we're tapping into Hobbes and Locke. Life is nasty, brutish, and short. Those are the only reasons why we would give up our authority in nature. Here's the money quote, "Instead of assuming that men will be angelic, who occupy our new government, we will assume that they are ambitious. We will pit ambition versus ambition." Thus, Nia, you get your checks and balances. Right now, we're seeing this play out in real time in American politics and government. Donald Trump says, "I am the president. The executive power of the United States is vested in moi, in me." Some federal courts are saying, "But we get to say what is the law that allegedly gives you power to act."
N. Rodgers: Theoretically, the job of, at least, the Supreme Court of the United States is to say whether something is constitutional or not. They're supposed to read the Constitution and say, that's not covered, you're not allowed to do that, or that's covered, and you are allowed or you're not allowed to do that.
J. Aughenbaugh: If we had a functioning Congress, Congress would be pushing back. I know that's a big if, listeners.
N. Rodgers: I was going to say, little bitter there, Aughie.
J. Aughenbaugh: From there, Madison says, "The anti-federalists criticize us for in other parts of the Constitution of harming liberty. There's no Bill of Rights. In this proposed Constitution, the federal government has more significant power and authority than in the Articles of Confederation." But he goes, "Checks and balances will preserve liberty." How? Because it makes it very difficult for the federal government to utilize all the power that's given it in the Constitution. This is where Madison describes, for instance, United States Congress has two Houses. Do the two Houses always agree? No.
N. Rodgers: Regularly, they do not.
J. Aughenbaugh: Even if they try and can come to an agreement, Nia, what can the president do to any legislation passed by Congress?
N. Rodgers: Veto.
J. Aughenbaugh: Veto. But let's just say both the Congress and the president are holding hands and singing Kumbaya, and legislation gets passed. Could somebody challenge that approved legislation in a federal court, and a federal court says, "Yep, sorry, guys. That law is unconstitutional."
N. Rodgers: Absolutely. Happens all the time.
J. Aughenbaugh: Happens all the time.
N. Rodgers: As long as you can show standing.
J. Aughenbaugh: That's right.
N. Rodgers: One of the things that we've mentioned in these federalist episodes, lo those many years ago, if you'll remember, is that there were these guys who wrote for the opposition. Madison's writing the federalist papers, and because historians love to have enemies and arch enemies, they call the other guys the anti-federalists, one could, in fact, have called them other guys and not called them anti-federalists, but whatever, everybody's got to have a nemesis. Centinel 1 was written by Samuel Bryan, and it addresses Federalist 51. It basically gives side eye to Madison's in their eyes, hopelessly, utopian view of humankind. One of the things they say is this hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third.
J. Aughenbaugh: Yes.
N. Rodgers: Centinel is saying, your plan works as long as everybody acts appropriately. But when two of the sides gang up on the other side, they could crush it like a bug.
J. Aughenbaugh: What Centinel was portending, if you will, is what many political scientists have criticized Madison's argument in Federalist 51 for actually occurring. Nia, you've heard me say this both off recording and on recording. Heck, I just said this a few moments ago. Madison presupposes that each of the branches will jealously guard their authority from encroachments from the other branches.
N. Rodgers: Yes, somebody should tell Congress.
J. Aughenbaugh: That there won't be this coalition of at least two of the branches against a third, which is what frightened him.
N. Rodgers: He assumed that everybody would be equally ambitious. I think modern politics has shown that maybe he was mistaken in that.
J. Aughenbaugh: Yes.
N. Rodgers: Because Congress has handed over a lot of power to the presidency.
J. Aughenbaugh: This frequently happens when the Congress is controlled by the same political party as the president. In part, Madison could not have foreseen, when he was writing Federalist 51, how political parties would dominate American politics and government. But let's use an example that's not rooted in today's political times. Think about, for instance, how willing the Democrats were in the 1930s to basically just roll over, and give FDR whatever he wanted in response to the Great Depression.
N. Rodgers: Including, sure, we'll let you stock the Supreme Court with lots more people. They were willing to let him basically trash the judiciary or fill it with people who would do what he wanted them to do.
J. Aughenbaugh: In part, and we pointed this out in the previous two federalist papers that we explored, and Nia and I both think that this is a relevant theme. You have to be cautious in assuming the genius of the federalists simply because they won the debate and the Constitution got ratified, etc.
N. Rodgers: They got to write the history and they made themselves look really good.
J. Aughenbaugh: This criticism by Centinel is spot on in regards to the fact that, for instance, and both political parties are guilty of this, the Republicans who have majority control of both Houses of Congress right now don't object to anything meaningful in regards to Trump. Likewise, as recently as a year ago, or two years ago, the Democrats basically went ahead and said to President Biden, go ahead, do whatever. Madison assumed Congress would push back.
N. Rodgers: He leaned into their ambition as a tool.
J. Aughenbaugh: Yes.
N. Rodgers: To prevent that from happening.
J. Aughenbaugh: Yes. We don't see that. That is one of the chief critiques. On the other hand, for Americans and perhaps others around the world who lament the fact that the United States government doesn't get more done. Mia, I hear this with some regularity from my students in POLI 103 who are non-majors. They're like, "The government doesn't do anything. Government's slow to act. We need these huge policy changes, and the federal government gets nothing done." I'm like, "Yeah, but that's by design." They're like, "Huh." I said, "Again, guys."
N. Rodgers: Speed bumps. Speed bumps for reason. Slow down.
J. Aughenbaugh: "I just had you read Federalist 51 where Madison goes ahead and says, liberty is preserved because of checks and balances." They're like, "Oh." I said, "Hey, guys, if you want an efficient government, one, don't pick a democracy, and two, don't pick the American version." Because we've already talked about federalism, by the way. In a previous podcast episode, we looked at a federalist paper that explored federalism, and federalism, a Republican form of government, contributes to those speed bumps that you just mentioned, Nia.
N. Rodgers: Yeah, they are a feature, not a bug.
J. Aughenbaugh: Yes.
N. Rodgers: The whole point there is to slow everything down a little bit. There's also a reason why half not half, actually, quite a bit of the Congress serves for two years, and a much smaller group of people serves for six.
J. Aughenbaugh: That's right.
N. Rodgers: The idea that the senate slow things down, they are theoretically going to be there beyond a president.
J. Aughenbaugh: Yeah.
N. Rodgers: Or at least beyond one presidential term. But I do think it's interesting that Madison goes back after Centinel's commentary and eventually adds the first 10 amendments. The freedom of speech and the freedom of the press and the freedom to assemble, and that's the great push and pull of the federalist papers is that the thing that we should admire most about the founders, I think, is that they could say, okay, that's a fair point. Let's put something in that adjusts for whatever this thing is that you're talking about. They were willing to believe that there were other smart people in the room who had something valuable to say, and I think that's a huge lesson we could carry forward into the modern era.
J. Aughenbaugh: Yeah. Listeners, what Nia is getting at is, and I like to say this in my classes. On one hand, we speak of the genius of the founders. They had these novel ideas that they were willing to try.
N. Rodgers: And visionary.
J. Aughenbaugh: Yes. On the other hand, they were extremely pragmatic.
N. Rodgers: Yeah, we got to get this done.
J. Aughenbaugh: Yeah.
N. Rodgers: The three fifths compromise was a pragmatic compromise. Many of them thought that was a terrible idea.
J. Aughenbaugh: Sure. By today's standards, it's horrific.
N. Rodgers: But at the time.
J. Aughenbaugh: But probably a better example is the great compromise. Prior to the US Constitution, there was not a legislative body in the world that had two houses. At the Constitutional Convention, you have the larger states who are like, yes, we want representation in Congress based on population.
N. Rodgers: Apportionment.
J. Aughenbaugh: Yeah.
N. Rodgers: Sweet. Good for California. We'll get 985 people in the government.
J. Aughenbaugh: We're at that time because California did not yet exist.
N. Rodgers: It didn't exist.
J. Aughenbaugh: You're talking about New York, Virginia, Boston, excuse me, Massachusetts and Pennsylvania. The rest of the states get screwed. Rhode Island, Delaware, Connecticut.
N. Rodgers: Maine it's got four people in it. They're hardy, but there's not very many of them.
J. Aughenbaugh: But the small states were like, hey, wait a minute, here, why don't each state have equal representation, which, by the way, is inherently anti-democratic.
N. Rodgers: In the votes for a population of 100 people, those two votes count for a lot more than the votes for 100,000 people for two votes.
J. Aughenbaugh: Yes.
N. Rodgers: If you're a senator who represents 50,000 people versus 50 people, 50,000 people are really losing out on having an equal vote. They're not having an equal vote.
J. Aughenbaugh: Yeah. Remember, they just got done fighting in a Revolutionary War because the British crown was anti-democratic.
N. Rodgers: Right. No taxation without representation. That was the whole point of the Revolutionary War. You can tax us as long as you give us somebody in parliament to complain, and they were like, no, we don't want you to have anybody in parliament.
J. Aughenbaugh: You get this pragmatic, if you will, compromise. Even the selection of the president is pragmatic. On one hand, you had people at the Constitutional Convention who were like, the president should be chosen by the Congress. Others were like, no, should be elected by the great masses. But then you got some folks who were like, hey, wait a minute, here, do we trust either the great masses or Congress?
N. Rodgers: Exactly. Let's think about what's massively popular in the world. Things that are ubiquitous and massively popular and think about the people who love those things, and then do you want them making decisions? For instance, I know, and listeners well know that Dr. John Aughenbaugh drinks approximately 74 gallons of coffee a day. Do you want him in charge of deciding what drink everybody has to drink? I think not because we're all going to be coffee drinkers at that point. You know what I mean? Just because something is popular doesn't mean, it's necessarily the right thing. You can go to something like Stalin or Hitler, who were very popular in their time.
J. Aughenbaugh: The War.
N. Rodgers: If we got leaders like that, we would be totally in despair.
J. Aughenbaugh: Yes.
N. Rodgers: James Madison wins. He gets the accolade, and most people are like, who the heck is Samuel Bryan. He's not a guy they know you know [inaudible] historians know.
J. Aughenbaugh: Yeah, Madison gets his name on the government. Samuel Bryan is just an historical artifact. Sorry, Sam.
N. Rodgers: Yeah. But again, going back to this idea of even the losers in the sense of what got put into the Constitution and what did not influenced it.
J. Aughenbaugh: Yes.
N. Rodgers: That was a volatile time when people were making pamphlets and talking in taverns and having real world discussions about what should happen with government. What is the right thing to do? Because they had an idea that this America thing might really go if we do it right, and it turns out, 250 years later, it's actually pretty solid document.
J. Aughenbaugh: Their arguments represented the values of what individuals emphasized. It would be easy at that time for proponents of the New Constitution to say, well, those who oppose us don't want to change. But that was a very difficult, if you will, criticism to levy simply because those people also fought in the Revolutionary War. They were willing to go ahead and have change. The question that then arose was, what kind of change. What do you value the most? Federalist 51 in some ways, is extremely pragmatic. Some of my students have said, wow, the founding fathers were quite jaded about human nature. I'm like, no, not necessarily. They just believe that those who occupy positions of government authority would tend to be ambitious.
N. Rodgers: You have one of the examples out of this, which I love about the Constitution is the president gets to pick who's going to be on the Supreme Court. The president gets to nominate. I nominate John Aughenbaugh to be on the Supreme Court. But in a perfect use of check and balance, the Senate then holds a hearing. A nomination hearing and says, John Aughenbaugh, what do you think about, whatever. In his hearing, if he says something like, yeah, I don't think murdering babies and putting them on spikes out in front of the building is all that bad. They can be like, that guy's got to go. That guy can't be on the Supreme Court. That guy's a lunatic.
J. Aughenbaugh: Of course.
N. Rodgers: Or you say something that they universally love. I believe in truth and rightness and the American way or whatever, and they all go, oh, we love that guy, and you pass and you go forward. But the Senate has that check on the president, so he can't just say, hey, my buddy Aughenbaugh would make a great Supreme Court justice. Really? Does he have any qualifications? No, but he's my pal, and I like him. It prevents something like that, which they knew could happen with people who were in power because people who are in power tend to reward people who have supported them.
J. Aughenbaugh: Yes, it's called patronage. We've argued about that practice in a democracy for years.
N. Rodgers: Is it a good thing sometimes. Sometimes it is a good thing. Sometimes the guy you know is the right person for the job. They are the person who would do a good job, and sometimes not so much.
J. Aughenbaugh: Recall the example you just focused on, recall Nia we did a series on this podcast about Federal Appeals Court judges, really well known Federal Appeals Court judges who never got nominated to the US Supreme Court.
N. Rodgers: Yes.
J. Aughenbaugh: This summer, during my hibernation, Nia, I was reading a biography of Supreme Court Justice Felix Frankfurter. One of his best friends in the entire world was one of the justices we discussed in that series, Learned Hand. Many scholars and many people who worked in the government argued that Learned Hand was probably the greatest Appeals Court judge who never got nominated to the Supreme Court. Now, part of it was timing. Once he became well known, he was too old. On the other hand, he also reflected a judicial restraint that fell out of favor in the 1940s, '50s and '60s. In his personal life, he was extremely liberal. But as a judge, he exhibited judicial restraint, and a number of times presidents considered Learned Hand for Supreme Court vacancies. But the Senate leadership usually pushed back and said, you can't pick him.
N. Rodgers: It's a no go. We don't have enough votes to get.
J. Aughenbaugh: Yes.
N. Rodgers: When people are not confirmed, then it reflects on the president.
J. Aughenbaugh: Yes.
N. Rodgers: Having not a good relationship with the Senate.
J. Aughenbaugh: Yes.
N. Rodgers: Getting an idea ahead of time whether somebody would pass or not.
J. Aughenbaugh: Yes.
N. Rodgers: There are reasons I would argue that Judge Bork was a mistake.
J. Aughenbaugh: Yes.
N. Rodgers: It was a misreading of the Senate and what the Senate would be willing that there were long memories in the Senate, and they remembered Bork from his Nixon days.
J. Aughenbaugh: Democrats also remembered how Southern Democrats treated Abe Fortas, who was nominated to replace Earl Warren as Chief Justice. Then you throw in the fact that a phenomenon that had hardly been seen before where democratic senators mobilize democratic interest groups to oppose the Supreme Court nomination. Now that's commonplace. A president nominates somebody to serve on the Supreme Court and the opposition parties, interest group backers immediately go to work. They got advertisements ready to run on TV and radio. They were producing op eds, etc. But that was unusual then. Reagan misread the audience, and that's a large part of checks and balances. Think about, for instance, in our lifetime, how Barack Obama got criticized by Democrats because he was unwilling to fight for Merrick Garland to replace Justice Scalia on the Supreme Court. In part, this was a calculus by President Obama that, hey, I got one year left in office. I've already burned whatever political capital I had on getting the Affordable Care Act through the United States Congress and approved by the United States Supreme Court. I have no more chips to push into the poker table.
N. Rodgers: I got to call because there's nothing I can do here.
J. Aughenbaugh: Yeah. Again, that's the thing about checks and balances. If you're going to check one of the other branches, you better make damn sure-
N. Rodgers: You can back it up.
J. Aughenbaugh: You can back it up because if you don't, then your institution loses authority.
N. Rodgers: Which is something we've discussed this summer that Jay Rob is worried about.
J. Aughenbaugh: Sure.
N. Rodgers: Is the Supreme Court as its popularity drops, is starting to feel some of those pressures as well, the pressures of legitimacy. Are you still a legitimate representative of the people?
J. Aughenbaugh: Yeah.
N. Rodgers: If you had to recommend that our listeners read one first, would you recommend 51 first?
J. Aughenbaugh: Yeah, because 51 probably does the best job explaining why we have both separation of powers and checks and balances in the US Constitution, yes.
N. Rodgers: I'm going to make a plea for reading Centinel 1, because I do think that the language in it is fascinating. It's got some pretty strong and somewhat sarcastic language. He refers to the Senate as "The great efficient body in the plan of this government." I'm like, he's being a bit catty.
J. Aughenbaugh: Yeah, he's snarky.
N. Rodgers: He's being snarky, so I would recommend Centinel 1, too, if you have time and they're not hugely long. It won't take you very long to read both of them. But it's interesting to see. Then you can decide philosophically where you end up. Do you end up somewhere in the middle? Do you end up leaning more towards Centinel? I do cause Centinel is much more cynical than 51 is. I'm like, now I'm with the guy who's all cynical. That's more me.
J. Aughenbaugh: It's so funny you mentioned that you see that.
N. Rodgers: He's Gen X before his time is what he is. Bryan is.
J. Aughenbaugh: It's so funny you say that, Nia, because I've been teaching Federalist 51 for years, and students accuse Madison of being cynical because of his, "If men were angels, there would be no need for government", and his argument that the way we produce a government that does not infringe upon liberty is to pit ambition versus ambition.
N. Rodgers: That is pretty cynical.
J. Aughenbaugh: My students are just like, how can you say, Professor Aughenbaugh that the founders did not have a negative view of human nature. They said, well, you describe it as negative. I describe it as realistic which then eventually leads some student to say, potato, potato, tomato, tomato. Let's call the whole thing off.
N. Rodgers: Yeah, and we decided not to call the whole thing off. We decided to go ahead with this democracy thing.
J. Aughenbaugh: Yes.
N. Rodgers: We'll see where that takes us.
J. Aughenbaugh: Yes. Listeners, we definitely recommend you read both Madison and Federalist 51 but also Centinel, which is also got some good stuff there.
N. Rodgers: Yeah, Samuel Bryan and Centinel 1.
J. Aughenbaugh: Yes.
N. Rodgers: But cool. Thanks, Aughie.
J. Aughenbaugh: Hey, thank you, Nia.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.