As politicians threaten the independence of the judiciary and arrogate the power of the legislature over all other branches, maybe some remedial reading is in order?

by Shaun Kenney

After a rather shocking — and by shocking, I mean disappointing — exchange on social media with a sitting Virginia state senator regarding his misuse of Federalist 51 to insist that the legislature outweighs the other two branches of government, it dawned on me that this particular individual has perhaps never actually read the Federalist Papers much less Federalist 51.

A few things out of the gate. The Federalist Papers were written to describe the limitations on the federal government vis a vis the United States Constitution, not the state constitutions themselves. Madison is widely believed to have written Federalist 51, and though he argues that because the legislative branch is the more powerful precisely because it is accountable to the people, he does not argue that it is superior to the other branches of the federal government.

In fact, the nature of legislative power being as such, Madison argues that the check on this power is a bicameral legislature — one being directly elected by the people themselves (the U.S. House of Representatives) to represent the demos and the other being elected by the state legislatures (the U.S. Senate) so as to represent the aristos. Of course, the 17th Amendment to the U.S. Constitution eliminated the U.S. Senate as imagined by the Founding Fathers, and the state constitutions — though protected by the 10th Amendment — are presently subject to federal understandings of right and law as the 14th Amendment progressively restricts the states’ ability to infringe upon rights protected by the U.S. Constitution.

If you have never read the Federalist Papers, or if the last time you bumped into them was either in a high school or college classroom, there are a handful that are considered requisite reading:

• Federalist 10 on the balancing of factions (Madison).
• Federalist 39 as to why the United States is a federal rather than national government (Madison).
• Federalist 51 on the separation of powers (Madison).
• Federalist 68 on the importance of the Electoral College (Hamilton).
• Federalist 70 on the need for a strong executive (Hamilton).
• Federalist 78 on the need for an independent judiciary (Hamilton).

Interestingly enough, Virginia Democrats have chosen to test the boundaries on just about each and every one of these items.

Given recent attacks on the independence of Virginia’s judiciary, the threats against the separation of powers, calls from Democrats to play fast-and-loose with the Electoral College, and the desperate need to balance factions — not just the branches of government but undermining of that balance by partisan faction — one might think that the Federalist Papers would be a good two-month vacation to remind us of the genius of Madison.

In fact, regardless as to whether or not you are suffering from Trump Derangement Syndrome or its variants, we may want to consider how a political temperament entirely focused on “we won” as the only arbiter of right and wrong just might not be what the Founders intended.

Interesting to modern readers should be John Jay’s contributions — specifically Federalist 2 through 5. What would sound positively remote to our ears in high school and most certainly settled after “the War” was the greatest fear of the Founding Fathers, namely that these states united might one day disunite into a series of competing and violent regional interests replaying the bloody wars of Europe, and not only this but pulled apart by those same powers so as to repeat the bloody wars of Europe.

Today, we find ourselves susceptible to foreign influence once again — sure there is China and Russia, but also Iran, the European Union, the United Kingdom, Latin American countries, sub-Saharan Countries. There are PACs of all shapes and sizes, and sometimes disproportionately out of size.

Yet there are also domestic influence operations that do the exact same thing, trying to pit one half of this country against the other half.

There’s a certain relief in reading The Federalist Papers if for no other reason than men as diverse as Hamilton, Madison, and Jay — two of whom would be Federalists, the other a Jeffersonian Republican who would become a part of the Virginia Dynasty that would lead America during the Federal Era — actively debated and discussed these questions, first at the State Capitol and then at the new Quesnay’s Academy Theatre on Shockoe Hill at 12th and Broad and presently the site of the VCU Hunton Student Center due to the crowds.

The Virginia debates on the ratification of the U.S. Constitution was thankfully recorded and include names you would instantly recognize Mason, Randolph, Madison, Henry, Tyler, Pendleton, Nicholas, Cabell, Taylor, Marshall, Lee, Monroe, Cocke, Washington, Wythe, and Blair.

Their concerns were different — there is a great deal of focus on whether or not the federal government would raise a standing army and tax the states for this national force, whether by defining a Bill of Rights we allow government a broad sphere to operate, whether the Northern Neck would remain loyal to Virginia if the Union ever dissolved or whether it would devolve to Maryland (p. 146) — but the debates aren’t terribly different than the debates we might have today, namely how to balance power against power, interest against interest, without devolving into violence and force.

Lawmaking is the ordinance of reason to the common good properly promulgated, so goes the saying. Laws being the second-best form of governance, how we got here is a good thing to study on a Memorial Day weekend as we lead into America’s 250th, especially if you are someone entrusted with the task of lawmaking by the citizens who elected to have you there.

Good for citizens too, especially as we fight to preserve the American experiment against its detractors.

Shaun Kenney is the senior editor of The Republican Standard. This column has been republished with the permission of The Republican Standard.