We have forgotten our origins. James Madison, writing in The Federalist, popularly known as The Federalist Papers, proclaimed that “The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny” (No. 47).
The Federalist is a series of articles written in 1787-88 by Alexander Hamilton, John Jay and Madison under the pseudonym “Publius” (a Roman statesman) in defense of the new Constitution. It is considered the authoritative guide to the Founders’ understanding of the Constitution, and how the people understood it when they ratified it.
The Founders sought to avoid the evil that they, like the ancient philosophers, called tyranny — the usurpation of power by a single individual or group. They dreamt of popular government advancing the common good, not factional interests.
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Despite its intricate scheme of separation of powers and checks and balances, the Constitution cannot prevent “faction,” a minority “actuated by interests adverse to the aggregate interests of the community” (No. 10). The greatest threat to the republic today is not terrorism, but faction—the concentration of overweening power in one political party.
That party, ironically the party of Lincoln (recall “…and government of the people, by the people, for the people, shall not perish from the earth”?) controls nearly two-thirds of our statehouses, the White House, and both chambers of Congress. Unless the Democrats retake the House or Senate, one party will soon consolidate its hold on all levers of our federal government. And to top it off, this is a party that plays a consummate zero-sum game — “winner takes all.” Welcome to oligarchy, to government by the few.
The preservation of liberty, argues Publius in Nos. 47, 51, 78, “requires the three great departments of power to be separate and distinct,” including an “independent spirit in the judges.” “If the power of judging be not separated from the legislative and executive powers,” there can be no liberty. Independent courts are “the bulwarks” of our system against totalizing power.
Instead, our Supreme Court has become an instrument of partisan advocacy. When Justice Anthony Kennedy announced his retirement from the bench, the ultra-conservative Federalist Society supplied the administration with the names of 25 nominees, all ideologically aligned with the far right. One will replace Justice Kennedy, the median — “swing” — vote on the court. Kennedy’s departure will push the ideological balance of the court (already well to the right of center) further outside the mainstream, possibly for decades to come.
Supreme Court nominations are supposed to be about character and qualifications, individuals serving the rule of law, not partisan concerns. Publius nails it in Nos. 57, 63, 71, and 76: “Holders of high office are to possess wisdom, temperance, respectability, courage, magnanimity, and judgment,” qualities which (ought to) predispose a jurist to fairness, broader vision, and dispassionate ruling.”
Still, party alliance will doubtless trump the Founders’ intent when the Senate majority confirms Justice Kennedy’s successor. Politicization of the courts undermines their roles as neutral arbiters and necessary checks on the other branches. In the end, courts riven — or driven — by politics, right-wing or left, cannot sustain public confidence.
The Federalist is, in sum, essential reading for an understanding of our system of government. It exposes the widening gulf between the Founders’ dream and its realization. Lest we become one of a succession of flowerings in history, we must reforge our heritage. This will ask of us a stronger collective sense and politics for the public good, in times not hospitable to either.
Gary Fry
Gary Fry grew up in Tucson and lives in Hereford. He practiced law in Phoenix for 40 years before retirement.