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‘In Republican Government, the Legislative Authority Necessary Predominates’

5:14 PM, Sep 7, 2011 • By JEFFREY H. ANDERSON
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Michele Bachmann may not know what part of the Constitution she thinks was violated by Romneycare, but she nevertheless deserves credit for making an excellent point about our constitutional design during Monday’s GOP presidential forum. While many unsuspecting public school students (myself included) have been taught otherwise, ours is not a government of separate and equally powerful branches — at least not by design. In truth, the federal government’s branches were intended to be separate and independent — but not equally powerful.

Huge Capitol

During the forum, Bachmann said the following during an exchange with Princeton professor Robbie George, a leading conservative intellectual: 

“Thomas Jefferson understood that, of the three branches of government, the most important was the United States Congress, consisting of the House and the Senate. The second would be the executive, and the third, and a far distance third, was considered the Supreme Court of the United States. 

“If the Supreme Court, by a plurality of the justices, may impose their own personal morality on the rest of the nation, then we are quite literally being ruled by those individuals, as opposed to giving our consent to the people’s representatives.”

Newt Gingrich later made a similar statement during his exchange with George:

“The idea that the founding fathers also meant to say, oh, by the way, by a five-to-four vote, appointed lawyers can be the equivalent of a constitution convention, is an absurdity.

“All of this starts in 1958 with a Warren Court assertion of supremacy, which is profoundly wrong. The Supreme Court is supreme in the judicial branch, and the judicial branch is one of the three branches. It’s the third branch mentioned in the Constitution, and in the Federalist Papers, Alexander Hamilton says explicitly it will be the weakest of the three branches.”

Bachmann and Gingrich are right. The Constitution is four pages long, and nearly half of it is taken up with the legislative article (Article I). The executive article (Article II) is less than half as long as the legislative, and the judicial (Article III) is less than half as long as the executive. Additionally, Congress was empowered to design most of the judicial branch. 

In Federalist 78, as Gingrich noted, Hamilton famously wrote that, not possessing “either the sword or the purse…the judiciary is beyond comparison the weakest of the three departments of power.” In Federalist 51, James Madison wrote, “In republican government, the legislative authority necessary predominates.” Thus, said Madison, it was necessary to divide the legislature into two houses, so that each may serve as a check on the other. Likewise, it was necessary to vest the president with the veto, an inherently legislative power listed in the legislative article. Madison explained, “As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

In a republic — a government of, by, and for the people — it is essential that the branch closest to the people (the legislative) wield more power than the branches that are further removed (the executive) or almost entirely insulated from (the judiciary) the people. In highlighting this important and frequently mischaracterized aspect of our constitutional design, Bachmann and Gingrich (and George) have provided a public service. 

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