Separation Of Powers Vs Federalism
The separation of powers and federalism are the two major foundational elements within the US Constitution. Behind the rationales of the separation of powers and federalism in the United States is ultimately to ensure liberty, stability and harmony amongst the people within the United States, by preventing the consolidation and concentration of power within government, contributing to what we see as American exceptionalism today. In this paper, I will discuss how the differing historical contexts in which the separation of powers and federalism took root, which has determined the design of the Constitution to create horizontal and vertical self-regulatory mechanisms that prevent the problem of tyranny. Next, I present how the negative perception
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of human nature of both the Federalists and Anti-Federalists have branched out in different dimensions ways to deal with the problem of tyranny. Finally, I posit that both the separation of powers and federalism are the results of compromise between the Federalists and Anti-Federalists.
It is important to consider the historical contexts under which the separation of powers and federalism took root, to understand how they came to design the constitution as consisting of both horizontal and vertical self-regulatory mechanisms. This has allowed the constitution to prevent the problem of tyranny through both vertical and horizontal political dimensions of the United States. The separation of powers was conceptualised to deal with the problem of the day – to prevent unbridled political power concentrated in one person’s hands that could jeopardise liberty by providing “practical security” (Waldron 2013, 440). In order to do so, there had to be a separation of the different functions of government, made up of the executive, legislature and judiciary. Even though the idea of the separation of powers is not a legalistic one, it is a “normative” and “positive” principle that the founders of the Constitution did adopt with adaptation (Waldron 2013, 437). Articulated governance upholds the honour of each individually unique function, since no decision can be made in a single gestalt (Waldron 2013, 457), by the tyranny of one section of government. By following through a specific set of steps, power can be more legitimately and well wielded (Waldron 2013, 458), and this allows for horizontal self-regulation under the US Constitution.
Federalism, however, rose as a solution to the need to protect small communities against imperialism, by ensuring power in numbers and in size (Kincaid 1990, 69). It also helps to collective action problem of a large diverse community by calling for a division of power between the federal government and state governments (Lim, 10 September 2015). By forcing the states to relinquish some sovereignty to the federal government, there is a delicate balance created between the two levels of sovereignty, as each government can act only within their enumerated powers under the Constitution. It creates a commitment to two different communities, appeasing both the Federalists and the Anti-Federalists in their pursuit of nation-building, which had great concern over powers of the federal and state government respectively. The Anti-Federalists believe that a fraternity can only bloom in small republics with homogenous people, while the Federalists believe in the possibility of a large diverse republic (Lim, 1 September 2015). Since states existed before the federal dimension did, local communities granted the individual needs of citizens, while the federal government engaged in national duties across state lines (Lim, 10 September 2015). As a result, there is a strong federal government with clear articulation within the Constitution of its power, and the power of state governments expressed in the Bill of Rights, which prevents tyranny by providing for representation with both sides in mind. This can be exemplified in the issue of representation, which puts neither large nor small states at a disadvantage. Within Congress, the Senate ensures small states are happy by allowing each state two representatives regardless of size, while the House of Representatives makes big states happy by according representation based on the size of the state’s population (Lim, 29 September 2015). Hence this balance of power between the two sovereignties allows for vertical self-regulation, and coupled with horizontal self-regulation, the stage is set for a union without tyranny as a problem.
Both the rationales behind the separation of powers and federalism lie in a negative perspective of human nature, believing that power could possibly become vested in one person’s hands, hence there is a need to clamp down on the power-hungry nature of individuals (Federalist #51).
This contributes to the idea of the pure separation of powers within the three branches of government, because of the fear of the monarchy at the time of the First Founding and the Anti-Federalist idea that self-interest was human nature that could be kept under control but not rooted out (Kenyon 1955, 15). However, with the end of the monarchy, there was the realization that tyranny can come from not only the monarchy, but by both the few and the many (Federalist #51). As Madison puts it, ambition is part of human nature, and by allowing the ambition of one to be kept in check by the ambition of another by giving each branch a little bit of the power of the other branch, this natural propensity to accumulate power can be utilized as a self-regulating mechanism within the Constitution (Federalist #51). Under Articles of Confederation, the state legislature was the most powerful, because they controlled the federal government (which lacked the power of the purse), but they were not immune from the problem of tyranny by families who controlled the state elite and represented only factional interests, and by extension factionalism of the entire union. This gave rise to blended separatism, as Federalism calls for the harmony between the different sections of government power, giving each branch a little power belonging to the other branches; for example, the legislative branch holding some executive power through the ability to make treaties. By doing so, the pursuit for the common good is established by a strong power instead of the selfish quest for power among the factions (Lim, 15 September 2015), as the other as interdependent factors weeds out the excessive ambition of one branch,
ensuring that tyranny shall not be brought upon the people.
The separation of powers and federalism are the results of compromise between the Federalists and Anti-Federalists, which can be understood in the context of checks and balances. The liberal perspective, the product of its feudal fears, believes in the pure separation of powers, for government powers should be split and reduced to prevent tyranny by the executive (Lim, 10 September 2015), therefor they focus on checking of the integrity of the branches, especially for the executive. This obsession with checking is evidence of the Anti-Federalist distrust of a strong central government, as they feared the tyranny over the states by the executive. This is the only way in which the Anti-Federalists, though engaged in some revolutionary remorse that admits the Federalist perspective of necessity of government to some extent, are able to limit the powers of government, seeking to protect the liberty of Americans by the “thou-shall-nots” provided in the Bill of Rights (Lim, 25 August 2015). This acts as a compromise on the side of the Anti-Federalists, because they perceived that the Constitution itself was not enough to eradicate corruption, making checking imperative (Kenyon 1955, 15).
On the other hand, the republican perspective believes in the idea of the mixed constitution, which calls for composite parts of power arranged to form a delicate balance and truly combat tyranny (Lim, 15 September 2015). Unlike the Anti-Federalists, the Federalists do not fear power but seek to create harmony amongst the different functions of power. They were more concerned about the modern problem of reconciling different stakeholders in the compact, allowing for inter-branch negotiation and compromise to give rise to best possible outcomes for American livelihood because no single sector can monopolise power (Lim, 6). Federalism is a compromise between the Federalists and Anti-Federalists because it keeps in mind the Anti-Federalist fear of the consolidation and concentration of power in one’s hand and its checking solution, but added the concept of balancing through blended separatism that rectifies the initial subordination of the executive by the legislature by giving the executive more power (Lim, 25). However it is also crucial to note that despite the perceived compromise created by balance of power through checks and balances, the Constitution possesses a Federalist leaning that sees a stronger central government that can extend its reach into the small republics, by wrapping the balancing within the Anti-Federalist checking, making the need for a strong government more acceptable to them (Lim, 4). This is quite evident in Article 5 of the Constitution that gives Congress the power to select the mode of ratification despite giving both the Federalists and Anti- Federalists decision-making power in the proposal stage (Lim, 10 September 2015).
In conclusion, both the separation of powers and federalism ultimately work as “auxiliary precautions” (Vetterli and Bryner 1987, 2) against the tyranny of one, few and many. Within the Constitution lies the design to ensure that America is built upon both the aspirations of the Federalists and Anti-Federalists on their own terms (of liberty and collective self-government respectively) through the Federal and Anti-Federal compromise and debate. All in all, despite some discrepancies in the levels of Federal and Anti-Federal influence, the result is American exceptionalism.
of human nature of both the Federalists and Anti-Federalists have branched out in different dimensions ways to deal with the problem of tyranny. Finally, I posit that both the separation of powers and federalism are the results of compromise between the Federalists and Anti-Federalists.
It is important to consider the historical contexts under which the separation of powers and federalism took root, to understand how they came to design the constitution as consisting of both horizontal and vertical self-regulatory mechanisms. This has allowed the constitution to prevent the problem of tyranny through both vertical and horizontal political dimensions of the United States. The separation of powers was conceptualised to deal with the problem of the day – to prevent unbridled political power concentrated in one person’s hands that could jeopardise liberty by providing “practical security” (Waldron 2013, 440). In order to do so, there had to be a separation of the different functions of government, made up of the executive, legislature and judiciary. Even though the idea of the separation of powers is not a legalistic one, it is a “normative” and “positive” principle that the founders of the Constitution did adopt with adaptation (Waldron 2013, 437). Articulated governance upholds the honour of each individually unique function, since no decision can be made in a single gestalt (Waldron 2013, 457), by the tyranny of one section of government. By following through a specific set of steps, power can be more legitimately and well wielded (Waldron 2013, 458), and this allows for horizontal self-regulation under the US Constitution.
Federalism, however, rose as a solution to the need to protect small communities against imperialism, by ensuring power in numbers and in size (Kincaid 1990, 69). It also helps to collective action problem of a large diverse community by calling for a division of power between the federal government and state governments (Lim, 10 September 2015). By forcing the states to relinquish some sovereignty to the federal government, there is a delicate balance created between the two levels of sovereignty, as each government can act only within their enumerated powers under the Constitution. It creates a commitment to two different communities, appeasing both the Federalists and the Anti-Federalists in their pursuit of nation-building, which had great concern over powers of the federal and state government respectively. The Anti-Federalists believe that a fraternity can only bloom in small republics with homogenous people, while the Federalists believe in the possibility of a large diverse republic (Lim, 1 September 2015). Since states existed before the federal dimension did, local communities granted the individual needs of citizens, while the federal government engaged in national duties across state lines (Lim, 10 September 2015). As a result, there is a strong federal government with clear articulation within the Constitution of its power, and the power of state governments expressed in the Bill of Rights, which prevents tyranny by providing for representation with both sides in mind. This can be exemplified in the issue of representation, which puts neither large nor small states at a disadvantage. Within Congress, the Senate ensures small states are happy by allowing each state two representatives regardless of size, while the House of Representatives makes big states happy by according representation based on the size of the state’s population (Lim, 29 September 2015). Hence this balance of power between the two sovereignties allows for vertical self-regulation, and coupled with horizontal self-regulation, the stage is set for a union without tyranny as a problem.
Both the rationales behind the separation of powers and federalism lie in a negative perspective of human nature, believing that power could possibly become vested in one person’s hands, hence there is a need to clamp down on the power-hungry nature of individuals (Federalist #51).
This contributes to the idea of the pure separation of powers within the three branches of government, because of the fear of the monarchy at the time of the First Founding and the Anti-Federalist idea that self-interest was human nature that could be kept under control but not rooted out (Kenyon 1955, 15). However, with the end of the monarchy, there was the realization that tyranny can come from not only the monarchy, but by both the few and the many (Federalist #51). As Madison puts it, ambition is part of human nature, and by allowing the ambition of one to be kept in check by the ambition of another by giving each branch a little bit of the power of the other branch, this natural propensity to accumulate power can be utilized as a self-regulating mechanism within the Constitution (Federalist #51). Under Articles of Confederation, the state legislature was the most powerful, because they controlled the federal government (which lacked the power of the purse), but they were not immune from the problem of tyranny by families who controlled the state elite and represented only factional interests, and by extension factionalism of the entire union. This gave rise to blended separatism, as Federalism calls for the harmony between the different sections of government power, giving each branch a little power belonging to the other branches; for example, the legislative branch holding some executive power through the ability to make treaties. By doing so, the pursuit for the common good is established by a strong power instead of the selfish quest for power among the factions (Lim, 15 September 2015), as the other as interdependent factors weeds out the excessive ambition of one branch,
ensuring that tyranny shall not be brought upon the people.
The separation of powers and federalism are the results of compromise between the Federalists and Anti-Federalists, which can be understood in the context of checks and balances. The liberal perspective, the product of its feudal fears, believes in the pure separation of powers, for government powers should be split and reduced to prevent tyranny by the executive (Lim, 10 September 2015), therefor they focus on checking of the integrity of the branches, especially for the executive. This obsession with checking is evidence of the Anti-Federalist distrust of a strong central government, as they feared the tyranny over the states by the executive. This is the only way in which the Anti-Federalists, though engaged in some revolutionary remorse that admits the Federalist perspective of necessity of government to some extent, are able to limit the powers of government, seeking to protect the liberty of Americans by the “thou-shall-nots” provided in the Bill of Rights (Lim, 25 August 2015). This acts as a compromise on the side of the Anti-Federalists, because they perceived that the Constitution itself was not enough to eradicate corruption, making checking imperative (Kenyon 1955, 15).
On the other hand, the republican perspective believes in the idea of the mixed constitution, which calls for composite parts of power arranged to form a delicate balance and truly combat tyranny (Lim, 15 September 2015). Unlike the Anti-Federalists, the Federalists do not fear power but seek to create harmony amongst the different functions of power. They were more concerned about the modern problem of reconciling different stakeholders in the compact, allowing for inter-branch negotiation and compromise to give rise to best possible outcomes for American livelihood because no single sector can monopolise power (Lim, 6). Federalism is a compromise between the Federalists and Anti-Federalists because it keeps in mind the Anti-Federalist fear of the consolidation and concentration of power in one’s hand and its checking solution, but added the concept of balancing through blended separatism that rectifies the initial subordination of the executive by the legislature by giving the executive more power (Lim, 25). However it is also crucial to note that despite the perceived compromise created by balance of power through checks and balances, the Constitution possesses a Federalist leaning that sees a stronger central government that can extend its reach into the small republics, by wrapping the balancing within the Anti-Federalist checking, making the need for a strong government more acceptable to them (Lim, 4). This is quite evident in Article 5 of the Constitution that gives Congress the power to select the mode of ratification despite giving both the Federalists and Anti- Federalists decision-making power in the proposal stage (Lim, 10 September 2015).
In conclusion, both the separation of powers and federalism ultimately work as “auxiliary precautions” (Vetterli and Bryner 1987, 2) against the tyranny of one, few and many. Within the Constitution lies the design to ensure that America is built upon both the aspirations of the Federalists and Anti-Federalists on their own terms (of liberty and collective self-government respectively) through the Federal and Anti-Federal compromise and debate. All in all, despite some discrepancies in the levels of Federal and Anti-Federal influence, the result is American exceptionalism.