Madison and the Framers of the Constitutional System - Case Study Example

Order 156010 - Topic: MIDTERM EXAM Introduction: This paper seeks to answer two questions in essay form. Questions and Answers Question In Federalist #51, James Madison wrote, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Please draft an essay outlining what precautions, auxiliary or otherwise, are enshrined in our constitution. Please articulate how Madison and the other framers believed our constitutional system could and would protect liberty and prevent tyranny. Answer to Question No. 1 The precautions, auxiliary or otherwise, that are enshrined in our constitution to protect liberty and prevent tyranny as articulated by Madison and the other framers of our constitutional system include the principle of checks and balances as found in the constitution for the purpose of maintaining in practice the necessary separation of power among the several departments. These departments of course include the legislative, executive and the judicial departments. Madison had maintained independence of each department members from each other as much as, for the emoluments attached to their offices.1 The precaution against abuses of one department over the other could be found in the constitution. The first consideration posited by Madison to accomplish this precaution provides, “ In a single republic all the power surrendered by the people is submitted to the administration of a single government, and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America the power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.2” Under the federalism principle Madison saw how the system of checks and balance could be installed in the Constitution. By respective the independence of each of state of the US, each state could provide a check in terms of guarding against abuses by the federal government. Each state is therefore being made independent with their own branches of government: the legislative, executive and judiciary. The second consideration provides for the need to prevent the society against the tyranny of those who will rule in addition to the need to prevent the latter against the injustice over the other part. To address therefore different interests caused by various classes of citizens and to maintain unity of majority by their common interest, Madison has proposed two ways or methods to prevent evil. The first one is to create a will in the community independent of the majority while the second is by having a big number separate descriptions of citizens that will cause the improbability or impracticability of combination of a majority of the whole.3 The US Constitution does recognize the right of minority although in a democracy the majority rules. The evident example for this is the right of the dissenting opinions in the Supreme Court to have their opinions also part of the decision. Experience would tell that prior opinions eventually become majority opinion. The US Constitution may have also created a number separate descriptions of citizens that could cause the improbability or impracticality of causing an unjust combination of a majority of the by the recognition of the right of minorities through possible violation of rights of the people under the equal protection clause. Pursuant to the equal protection clause, the US Congress cannot pass laws that would result to discrimination on the basis of color, religion or race. Recognizing the man has many interest to divide his mind, the Constitution provided for the right of assembly, association and freedom of religion reinforcing the principle that many groups could be created without putting the entire majority in a position of abuse. Madison thus argued that to prevent gradual concentration of a number powers with each department, the constitution must give create the motives that are both legal and personal to depend against intrusion of the other to department administers. He was therefore saying the defense must be commensurate with the risk of the attack and that ambition must match in neutralize an ambition.4 Madison and other framers of the US Constitution were saying that although the people or (the governed) would be the sources of power in government there was still a need first to control them via a government structure. The framers did saw the reality of the limitation or lack of perfection of man which is inherent in the weakness of human nature. He thus argued that government is necessary if men are angels and men were governed by angels then the need for external or internal controls would be useless.5 Question No. 2. In his dissident in Reynolds v. Sims (1964), Justice Harlan wrote: “Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional "principle," and that this Court should "take the lead" in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.” In his dissident in Baker v. Carr, (1962) Justice Frankfurter wrote: “The Courts authority -- possessed of neither the purse nor the sword -- ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Courts complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” Please write an essay on the proper role of the Supreme Court in our legal and political system, compare and contrast these dissenting views with the majority decision in Baker v. Carr. In your essay, please opine on how these justices might have treated the question presented in Bush v. Gore. Answer to Question No. 2 In Baker v. Carr, (1962) the court ruled that the question of reapportionment was justiciable question, that is within the power of the court to decide. The said case involved a complaint by Baker who alleged that apportioning the members of the General Assembly among the states given number of 95 counties by a 1901 statute of Tennessee, plaintiffs and others similarly situated, lost their under the equal protection of the laws pursuant to the Fourteenth Amendment of US Constitution of the United States in a way that would debase of their votes. Carr, as the Tennessee secretary of State was the named defendant in said case. The complaint was however dismissed by a court in Middle District of Tennessee due to lack jurisdiction of the subject matter and also due to the fact that there was no claim stated upon which relief could be granted. The U. S. Supreme Court did not agree with the lower court and took jurisdiction of the case instead and overruled the Tennessee court decision using as basis provisions in the Tennessee Constitution that require the legislature to carry out decennial redistricting based on the number of qualified voters in each county. The Court noted also the failure of Tennessee legislature to carry out the required redistricting since 1901. Hence Justice, William Brennan, was the one who spoke for the Courts majority, saying, "In light of the District Courts treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justifiable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes.” Justice Brennan also declared the right of a citizen to a vote free of unjustified denial by state action to Constitutionally recognized right which could be diluted by a false tally citing the case of United States v. Classic, 313 U.S. 299. In the same majority decision, impairment could also result by a refusal to count votes from arbitrarily selected precincts, citing United States v. Mosley, 238 U.S. 383, or by a stuffing of the ballot box, citing Ex parte Siebold, 100 U.S. 371.6 The dissenting opinion of Justice Frankfurter in the said case of Baker v Carr (1962) in a sense justifies his decision that the court should not take part in the decision if the issue is purely for the other departments to decide. He thus maintained the independence of the court by respecting the decision of the other departments. He therefore maintained the Courts complete lack of involvement, in fact and in appearance, from political meddling and by refusing to put itself into the conflict of political forces in political arena.7 The majority of the justices also declared in Reynolds v. Sims8 (1964) that the same issue is justiciable however Justice Harlan dissenting opinion stated the court is not the haven for reforms movements. What he meant for this was that the court decides legal question not when the issue is what people want in their sovereign capacity. The issue is re-apportionment has something to do with the eventual power of the people to vote and which in substance is political. The dissenting opinion in a sense objected with the court minding the other department’s business Justice Harlan dissenting view as mentioned earlier advocated independence of the judiciary as if the justice was saying that the court should respect the independence of the judiciary from other departments by respecting what could have to be decided by the Tennessee legislature under its Constitution. Not minding other department when the constitution tells so is in a sense preventing one department, this time the judicial department from encroaching under the principle of separation of powers. As to whether in my opinion, how the court these justices should have treated the question presented in Bush v. Gore, I submit the court also treated the issue as justiciable question since the court came in the picture in resolving the issue between Bush and Gore. In fact the Supreme Court, in the case of Bush v Gore, has declared it being aware of the vital limits on judicial authority as enshrined in the Constitution and which the court admires in its design to leave the selection of the President to the people, by the other branches of government but when the parties that fight over an issue invoke their rights like the process of the courts, however, the court is duty bound to resolve the issues that are both federal and constitutional 9. The Supreme Court was very respectful about the separation of powers among different powers its dipping its hand into the case was manifested in its judgment reversing the Supreme Court of Florida and remanding the case to the lower court for further proceeding. Conclusion The framers of US constitution made it sure that abuses are prevented by one department over the other hence the presidential type of democracy that they have. The passage of time testifies to the strength of principles in their constitution. The Supreme Court may provide the check in balance by exercising its independence from other departments. Sometimes however, the court is made to decide whether an issue is political or justiciable question. The court can only do so by following the US Constitution guided by its wisdom when the time is proper to come in to the picture. Separation of powers should however be guided by the principle that the branches, although made separate from each other are still to work together for efficient functioning of the system. Work Cited: Baker v. Carr (1962) , Summary {www document} URL http://www.utm.edu/staff/accarls/civilrights/Baker_Carr/Bakerv.CarrSummary.html, Accessed March 1,2007 Cornell Law School, Bush vs. Gore, (n.d.) {www document} URL http://www.law.cornell.edu/supct/html/00-949.ZPC.html, Accessed March 1,2007 James Madison, "The Federalist #51" (1787), {www document} URL 2007http://www.pinzler.com/ushistory/madfed51supp.html, Accessed March 1,2007 Reynolds vs. Sim 377 U.S. 533 (1964). {www document} URL http://usinfo.state.gov/usa/infousa/facts/democrac/68.htm, Accessed March 1,2007 Read More