The Federalist Papers and Institutional Power In American Political Development

D. Wirls

• Publisher: Palgrave Pivot
• Year: 2015
• Print ISBN:
  9781349506903
  9781137533272
• eBook ISBN:
  9781137499608
• Topic: Politics & International Relations
• Subtopic: Political Philosophy
• Index: Politics & International Relations

This book reconnects The Federalist Papers to the study of American politics and political development, arguing that the papers contain previously unrecognized theory of institutional power, a theory that enlarges and refines the contribution of the papers to political theory, but also reconnects the papers to the study of American politics.

1

The Federalist Theory of Institutional Power

Abstract: The Federalist contains a heretofore unrecognized theory of institutional power. In the papers each institution is characterized by its (1) powers, as in constitutional authority and duties, (2) organization, as in structure, size, procedures, and other internal resources, (3) constituency, as in external social support, and (4) relationship among the three elements or variables. The distribution of power among the branches is a function of the relative nature of each institution’s powers, organization, and constituency. This chapter introduces this argument and reviews the relevant literature from the scholars of the papers and American Political Development (APD).

Wirls, Daniel. The Federalist Papers and Institutional Power in American Political Development. New York: Palgrave Macmillan, 2015. DOI: 10.1057/9781137499608.0004.

“The constitutional convention of 1787 is supposed to have created a government of ‘separated powers,’ ” wrote Richard Neustadt in 1960. But, he famously concluded, “[i]It did nothing of the sort. Rather, it created a government of separated institutions sharing powers.”¹ Neustadt can be criticized for going too far in the other direction, producing his own oversimplification to make an important point. That is, the delegates at the Constitutional Convention, and the authors of The Federalist, conceived of these as largely separate powers—legislative, executive, and judicial—in separate branches while acknowledging that the boundaries were not always precise.² Neustadt’s renowned aphorism is also a bit misleading insofar as the equally famous book from which it is drawn, Presidential Power, is about just that, presidential influence, not sharing powers, as in constitutional or legal authority. As Neustadt makes clear a few pages later, “The probabilities of power do not derive from the literary theory of the Constitution.”³ Indeed, the implementation and evolution of the Convention’s handiwork quickly put an emphasis on the sharing of powers or, as we shall see, power more generally.

Whether directly or indirectly much of the study of politics is about the relationship between constitutional or legal authority—Neustadt’s literary theory—and actual influence, his probabilities of power. Legal authority is about who or what is authorized to act and in what way by a constitution, laws, or other rules and procedures. Actual influence is about how much control persons or organizations have over the matter at hand regardless of what seems to be the distribution and nature of authority. In politics the focus is often on what comprises institutional power. Such that in some cases the presidency might seem more powerful than the Constitution might allow. Or that Congress seems less capable than it should be. Or that the Court’s power fluctuated dramatically across some period of time. This distinction is sometimes referred to as the difference or relationship between powers and power, and it is at the core of studies of everything from the behavior of local police to the impact of international law. As far as the US Constitution and its institutional creations, considerable ink has been spilled, at least from Neustadt onward, in the quest for understanding the power of the separated institutions—along with the states—sharing powers and power.

The first American political scientists—the authors of The Federalist—certainly had a deep appreciation of political power, for the complex characteristics of the American political system as structured by the Constitution they were defending and for the interactions between and among its central institutions. That much we know. Their elaboration of the system of separated powers and checks and balances is one of the notable contributions of the work to political science. A considerable body of scholarship has explored and probed in various ways and for various purposes the papers’ treatment of these matters. And in a nearly obligatory and sometimes pro forma fashion we—political scientists, politicians, and pundits alike—rely on the papers for our summations and elaborations of this system, often letting Publius’ famous phrases more or less speak for themselves.

Despite the scholarship on this part of the papers and the regular invocation of its often epigrammatic phraseology, what has been drawn from The Federalist is typically a general portrait of the constitutional system as a rough balancing act of institutional powers and other interinstitutional checks—such as the great legislative power balanced by the veto, or the division of the legislature itself—without, I will argue, sufficient attention being paid to the conceptual coherence and theoretical implications of the papers’ serialized treatment of both the separation of powers and the specific governmental institutions. Overlooked is an implicit model or theory of institutional power that transcends the specific explanation of how the constitutional system was intended to work.

The Federalist’s ad hoc defense lays the foundation for a more general theory of institutional power within political systems, one based on the relationship of key variables at the center of separated institutions sharing powers. The central elements and relationships in the theory are woven through the papers albeit in a largely implicit fashion. The Federalist has been taken to task for a lack of philosophical rigor or coherence compared to other canonical works of political thought, and nowhere in the papers does Publius, whether in the voice of Madison or Hamilton, provide a theoretical summation of “his” thinking about the separation of powers let alone institutional power more generally.⁴ Even so, the papers discuss Congress, the executive, and judiciary in comparable terms. Each institution is characterized by its (1) powers, as in constitutional authority and duties, (2) organization, as in structure, size, procedures, and other internal resources, (3) constituency, as in external social support, and (4) relationship among the three elements or variables. The distribution of power among the branches is a function of the relative nature of each institution’s powers, organization, and constituency.⁵ The relationships—the careful arrangement of the trio of elements—are in Publius’ view the key to constitutional stability, but in addition much of the ebb and flow of American constitutionalism and the power of each of the branches of government over time can be elucidated by the theoretical implications of the papers’ underlying logic.

The picture of the branches that emerges from The Federalist can be summarized in the matrix of Table 1.1. The individual components of the matrix are familiar, even if the explicit division by powers, organization, and constituency is less so. It is not just the formal constitutional powers and the explicit checks and balances that structure the system. These are intrinsically linked to the organizational strengths and potential weaknesses (or virtues and vulnerabilities) of each branch, which in turn are related to public opinion and social forces. In discussions of the papers these three elements are typically not specified as general variables and, insofar as they are recognized, are more often separated than united, or linked only for a brief comparison or two drawn from Madison’s examples and logic in no. 51. Instead we need to see these elements as an integrated system that explains institutional power in a political system, as represented in Figure 1.1.

Even if Publius does not identify the trio, and indeed never puts a term or applies a label to either organization or constituency as categories, he discusses each separately and in juxtaposition throughout the papers. Each of the three—powers, organization, and constituency—is a central component of institutional power with independent effects (represented by the arrows from each directly to institutional power). But the impact of each, and the overall effect on institutional power, must be seen in the interrelationships between and among them (represented by the arrows between each element).

The relationships of the three variables both within each institution and across them comprise a model—one evident in The Federalist as a whole—of the separation of powers and checks and balances, a model from which a more general theory of institutional power can be constructed. Power, for purposes of this work, is the ability to get others to do what they would otherwise not or be unlikely to do, or to hinder or prevent others from doing what they would otherwise try to do, and more generally being influential rather than influenced. What do I mean by institutional power? Institutional power is an assessment or measure of an institution’s overall ability to influence the system within which it operates, relative to the other systemic institutions with some authority and relative to its degree of power across time. That is, institutional power is relational, both cross-sectionally in comparison to the other institutions and longitudinally in comparison to its own power at different points in time. In the case of a governmental system, influence is measured primarily by the impact on policy outcomes, be it in the form of initiation, amendment, or veto. For example, the organizational advantages provided by the combination of party and the committee system helped make Congress the dominant branch of government for most of the nineteenth century relative to the president and the Court, something I will discuss in Chapter 4, which applies the Federalist model to early American political development. Likewise, the twentieth century witnessed the substantial increase in presidential power as a result of the New Deal and World War II, through which the executive became a far more powerful institution than it had been. Having become the dominant actor in the system relative to the other branches, the presidency set an agenda to which others had to react and could take actions the other branches could or would not impede. This definition of institutional power is related to but more specific than the often more general formulations from institutional theory and the study of American Political Development (APD) about institutional effects, durability, and change, which I will discuss in Chapter 3.

TABLE 1.1 The Federalist’s institutional matrix

FIGURE 1.1 The Federalist’s theory of institutional power

As the framers constructed the Constitution through deliberation and bargaining, they were drawing upon and significantly revising existing notions of the separation of powers, borrowing innovations from state constitutions and practice, and creating new ideas that combined institutional independence and interdependence. In the attempt to explain and justify what the Convention had wrought, the combination of familiar features and architectural novelties packaged up in Philadelphia, The Federalist uses around 200,000 words to explicate the 4,400 or so words of the proposed constitution. The combination of just Federalist no. 10 and no. 51 is longer than the document their famous argument...

Table of contents

• Cover
• Title
• 1  The Federalist Theory of Institutional Power
• 2  The Separated Institutions Sharing Power: Powers, Organization, and Constituency in The Federalist
• 3  Stability, Change, and Power in the Study of Political Institutions
• 4  Powers, Organization, and Constituency in Early American Political Development
• 5  The Second Republic: The Era of Presidential Power and the Personal Branches
• 6  Conclusion
• Bibliography
• Index