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I'm Andy Rudalevige-- Professor of Government. I'd like to welcome you to Brunswick, Maine and the college's Museum of Art. This is Founding Principles-- a series introducing you to American government and how it works in theory and practice. We're gonna range back and forth between the 18th century and the present day-- exploring how American political institutions were constructed, how they were justified, and how they operate now. It's been said eight of ten questions about American government have one basic answer-- the separation of powers. So let's start there. What is the separation of powers? What's the philosophical basis in the Declaration of Independence and then the Constitution? How is it set up? How does it work today? Let's find out.

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There's one part of the Declaration of Independence with which we're familiar-- the famous second paragraph adapted, with poetry added, from the English philosopher John Locke. "We hold these truths to be self-evident. "That all men are created equal. "That they are endowed by their creator "with certain unalienable rights. "That among these are life, liberty, and the pursuit of happiness." The rest doesn't get quoted as much. It goes on to give reasons why Britain's king has failed his American colonies, and why those colonies are-- and ought to be-- free and independent states. In short, as Thomas Paine put it in his runaway bestseller Common Sense... The Declaration makes two claims about how that ought to work. Number one, that individuals have rights the government cannot take away. We only bothered to create government by the consent of the governed to protect ourselves against each other. So number two, when governments fail to protect us, as Americans thought England had, we can withdraw our consent. It is the right of the people to alter or to abolish them. Now turning those 13 free and independent states into one country proved rather difficult-- even leaving aside the mammoth military undertaking of the Revolutionary War. As that war went on, the new country needed stronger glue to hold it together. Something more permanent than an ad hoc Continental Congress. The first shot achieving that was the Articles of Confederation. These were drafted in 1777 and declared a perpetual union among the states. Well a union maybe but not united. Individual state governments held all the cards. There was no national executive branch, no judiciary, only Congress, and Congress required a super majority of nine states to do anything. It had no authority to tax, little ability to police state behavior. It was like the United Nations-- begging member states for dues, pleading with them to behave. States put up tariff barriers against each other. They refused to enforce the Treaty of Paris that ended the Revolutionary War. And meanwhile, the European superpowers circled like vultures.

[vultures screeching]

Alexander Hamilton despaired in the solemn way that only men in wigs can despair... But we didn't get quite to that actual last stage. Shays's Rebellion in Massachusetts in 1786 set off a wave of debtors' revolts that states were unable to put down. Fifty-five delegates from across the country gathered in Philadelphia to figure out what to do. Remember, the Constitution didn't come down on tablets from Mount Washington. It marks a dramatic but pragmatic move towards setting up a working federal government after the Declaration's more abstract discussion of individual rights and the Articles surrender to the states. To write the Constitution and to ratify it required many compromises. We know about the Great Compromise, which set up a Senate that represented the states equally and a House of Representatives based on state population. Let's remember the not so great compromise. The one that defines slaves as 3/5 of a person to boost southern states' representation in the House but not boost it too much. By the way, in Jefferson's original draft of the Declaration, one of his attacks on King George was Britain had introduced slaves and slave trade to the American continent in the first place, but that got taken out. The Constitution has a lot of useful vagueness in it. Quick, what are necessary and proper powers to provide for the common defense and general welfare? What is the executive power anyway? What are high crimes and misdemeanors? What exactly counts as interstate commerce? Nobody really knew, and that allowed the language to be sold to people in different ways. The immediate need was for states to ratify the document. Smart politicians that they were, the framers of the Constitution changed the number of states needed to do that, and it worked. One reason it worked was the Federalist Papers. These 85 essays were written by James Madison and Alexander Hamilton, plus a few by John Jay. They were designed to convince voters to ratify the new Constitution. They laid out what is still the most coherent account and defense of the political philosophy embodied in the Constitution. So let's think about that. The political philosophy of the Declaration of Independence is grounded in democracy-- with a small d. The Constitution is grounded in republicanism-- with a small r. The framers worried about what the Federalist Papers called the passions of men and what one delegate termed the "turbulence of democracy." Passion was dangerous, so the Constitution worked in ways of cooling it off, building in stability, protecting minorities against the potential tyranny of majority rule. The Senate filibuster is not in the Constitution. The Senate surely is. It represents tiny states equally with huge ones, rather than representing individuals directly. Only the House does that. Judges get lifetime appointments. The president is selected through a state-based system of electoral college elites. States themselves keep key elements of their sovereignty. It's a complicated decision-making system that requires consensus from numerous actors collectively representing very different constituencies. When they don't agree, nothing happens, and that happens an awful lot. But in this model, gridlock-- well gridlock is good. The idea was to have a government strong enough to do things for you but not strong enough to do things to you. You do that by having regular elections. The other way is by setting up competing institutions at the national, state, and local levels. Think about James Madison's masterpiece of political philosophy-- Federalist Paper Number 51. "If men were angels," Madison wrote, "no government would be necessary." If angels ran the government, things would be dandy as well. Here we are in the real world. People who rise to power are ambitious, self-interested, even selfish. The bad news is people are mostly not nice. The nice ones might not rise to power. The good news-- people are predictable. You can build a stable and lasting government based on that knowledge. If you give political actors the institutional means to compete, they will compete, and their self-interest will guard the national interest like a sentinel. Ambition can and must be made to counteract ambition. We call this the "separation of powers," but if powers were entirely separate, the different branches would not be able to check each other. Think about the presidential veto. Without that legislative power, the president wouldn't have the resources to block congressional overreach. Congress can shape the executive branch's behavior through the budget or even through impeachment. It's probably better to use the phrase coined by political scientist Richard Neustadt, who talked about a system of separate institutions sharing powers. Let's look at how ambition counteracting ambition could work in practice using the early Supreme Court case of Marbury versus Madison. This 1803 case is one of the most famous in Supreme Court history. It has rather tawdry origins-- the most fun kind of case. The case sprang from the 1800 election. Jefferson won; John Adams lost. On the way out, Adams and his Senate friends figured it made sense to pack the federal courts with partisan allies. More than 40 of these "midnight" judges were appointed on the very last day of Adams's term. Jefferson, not amused. On the first day of the new administration, there was still some missing paperwork that left the commissions of the judges unconfirmed. As the clock struck in March, Jefferson's secretary of state, James Madison, maybe imagine him singing, "Party over, oops, out of time." Now it was Adams's appointed judges who were not amused. One of these was William Marbury-- successful Maryland businessman. He sued the administration to try to get his commission officially delivered. Under the terms of the Judiciary Act of 1789, he went to the Supreme Court-- arguing he had been appointed by the president and confirmed by the Senate. That made him a judge or justice of the peace. The new Chief Justice of the Supreme Court was John Marshall-- himself a prominent ally of ex-President Adams. Adams and Marbury must have thought they had a sure win. Jefferson and Madison couldn't have expected much, but Marshall outpoliticked all of them. He delivered an opinion that didn't do much for Marbury but did a lot for the Supreme Court. First, Marshall asked... The answer? Yes, Marbury had been appointed and confirmed. Second... Well again, yes. The Judiciary Act I mentioned a second ago gave him that. At this point, as Marbury reads the opinion, he's pretty happy with life. Then comes the kicker. It's in the third question. And here Marshall suddenly says no. The Judiciary Act, he argues, is unconstitutional. It creates a new class of cases for the Supreme Court. Congress is not able to do that without amending the Constitution. So since the legal remedy is itself illegal, Marbury, out of luck. Madison and Jefferson win, but so does the court. What we've just seen is the creation of judicial review. The power of the court to declare laws unconstitutional even if Congress and the president sign off. That power seems normal to us now, but it's not in the Constitution. It's something Marshall wanted the court to have to give it real power against other branches of government. Using Marbury's case to roll out that power was a masterful move. How can Jefferson and Madison complain? Yes, their partisan enemy, Marshall, has made himself and the court dramatically more important, but they're stuck. They won the case. They won the battle, but the Court won the war. Its ambition had counteracted ambition and would be able to do so for centuries to come. That brings us to another way in which powers overlap across institutions-- this time across levels of government. Next episode, we'll look at federalism-- when Madison called a double protection to the rights of the people. We might call it why 89,000 governments are better than one. Hope to see you then. Accessibility provided by the U.S. Department of Education.

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