Ep. 397: Federalist Papers LIVE (Part One)

0:00Hey folks, what you're about to hear is a live show. We haven't done live shows in a while, but if you'd like us to do one in your area and have an idea for an appropriate venue for it, reach out to us, P-E-L at PartiallyExaminedLife.com. This was captured on video. If you'd like to experience it on video, check the Partially Examined Life YouTube page. It may or may not be ready by the time this goes up. Finally, I'll be teaching an online class, Key Ideas in the Philosophy of Mind, this fall. Please look to PartiallyExaminedLife.com slash class.

0:30Welcome to the Partially Examined Life. It's a podcast by some guys who were at one point set on doing philosophy for a living, but then thought better of it. This is a very special episode as we are live in the Madison, Wisconsin area at Middleston's Craftsman Table and Tap in front of a highly attractive and intelligent audience.

0:51Our question on this occasion is something like, is the American experiment working out as planned? And we read several of the Federalist Papers written by James Madison and or Alexander Hamilton in 1787 and 1788 as our Constitution was being ratified, specifically Federalist Papers number 10, 39, 54, 70, and 78. We also read a couple of the Anti-Federalist Papers, took a look at the Declaration of Independence and Frederick Douglass' Fourth of July speech from 1852. This is Mark Linsenmayer, your unitary executive for this afternoon's proceedings.

1:24This is Seth Paskin, unchecked and unbalanced in Madison, Wisconsin. This is Wes Allin, worried about the dangers of the plural executive in, where are we? Madison, Wisconsin? It's close enough. And this is Dylan Casey reflecting on the times when strengths become weaknesses and that communities, organizations, and institutions are made of individuals who are the animating virtues and vices of those collective entities in Madison, Wisconsin.

1:55All right. All right. Now we're going to go around and have all of you... That might take a little while. Afterward, we will have a Q&A in the last half hour of this. So we're going to talk for maybe an hour and a half here. Maybe we'll take a break. We'll see. We'll see. This is... We were advertising this is the 400th episode. It is... I think this is technically 397, but, you know, it's pretty arbitrary.

2:27We've done a lot of random recordings, sometimes calling the episodes, sometimes not. Sometimes it's a part three, but it's a separate day. Anyway, we're well past 400. But we got this far. We were here over a decade ago at this very restaurant doing our very first live show, and here we are back here. For episode 100 was here. Yep.

2:46Crazy. Yeah. Any initial reflections before we get into it?

2:53The fact that this is... This is the part where we improv for a couple minutes. 400 and the last time was 100? Well, I'll say 400 is four times 100. Yeah.

3:03Whenever I tell somebody that I do a podcast with some guys I went to graduate school with, and I say, yeah, we've been doing it for 17 years, that's when it hits me. Like, I... That seems like a really long time to do anything, but particularly this. And also... Are you saying that with pride or with shame? I can't tell. No, no. I mean, something like, this was, you know, it was kind of like Mark said, you want to get together and do something? We were like, sure. There was no plan. There wasn't, you know,

3:34we weren't trying to... We weren't trying to do anything. We were just doing. And 17 years later, we're still doing. So I find that to be really... And at that time, podcasting was kind of nascent. So we've seen the whole... We haven't changed, but the industry has changed quite a bit and the whole concept of podcasting has changed. So... And now that we have AI, I think in the Q&A, there's an opportunity to have some really interesting conversations about where all this is going because you might not need the four of us anymore.

4:06Yeah, that's true. Yeah, there is an AI, Seth, that has been launched and I'm not joking. He did this and we haven't actually talked to you about how we feel about that. He cloned your voice and you also uploaded all your notes that you ever took or you... I did transcriptions of all of our episodes and I uploaded it and had it tag which one was my part so it can see in context how I respond and I have all of yours tagged as well

4:36so I can make versions of you guys if you want. No, I've been chatting with you now for, you know, several weeks. Yeah, and the feedback I'm getting is that it says things that I would say but it doesn't sound like me. It sounds like every other AI out there. So personality, I guess, is the next step. So just like you can tell if you're in a dream or not, you can tell what is the actual Seth. That is correct, yes. All right, so this was a get-together, not actually for the 400. I mean, that was coincidence, but for the 250th birth of our nation.

5:10And so we've done, actually, yes, a long time ago, we did some of these federal papers before but we're not, we don't care. We didn't re-listen to any of that. We're starting fresh. This seemed like a good, you know, if maybe some of you, who doesn't listen to the show? All right, so there's a good percentage and that's fine. We're not going to talk about the weird Hegel stuff that we've been doing. This is stuff that everybody- Thank God we're done with that for a little while. Maybe should have done in school at some point. I don't know that I had to actually read these directly. I don't even remember.

5:41This is part of the foundational part of my philosophy education. This is in the first set of books that I read when I was doing Justice, Morality, and Constitutional Democracy at Michigan State University. So this is close to my heart. And then they do them at St. John's, right? They do. We do them at St. John's. Yeah. So we sort of each assigned ourselves one to introduce. I got the first one, which is about the unitary executive. So Federalist 70,

6:11the title of it is The Same View Continued in Relation to the Unity of the Executive with an Examination of the Project of an Executive Council. So, right, Hamilton asks us in Federalist 70, is a vigorous executive inconsistent with the genius of Republican government? And I think he talked like that. Genius being spirit. So nobody wanted a king, right? So why have a president at all? Why not just have a Congress? Well, or why not have two presidents or an executive council making the decisions, right?

6:42You wouldn't get a king abusing his power then. We have the presidential cabinet, of course. We've got the vice president. We've got the heads of the many executive agencies. But the question Alexander Hamilton was asking was, do we want these other executive officials to have real power against the president?

6:58Today, given who our president is, we probably want that. But no president can be an expert in everything. And we'd maybe like the wisest, most expert opinion in any given area to win the day. Hamilton argues, no. Of course, we want advisors with expertise, but the president is elected to be, as George W. Bush told us, the decider, right? So the Senate has to approve any appointments, but really the president is in charge of choosing who to listen to and making all the decisions.

7:28So even if he delegates a decision, the buck stops with him or her because he chose that delegation, right? Hamilton sees collaboration as necessary when it comes to actual lawmaking. People will disagree. It'll be difficult to pass legislation or amend the Constitution. That's actually good because according to Hamilton, it tempers the whims of the majority. But when we need to execute the law, we need that done decisively, swiftly, and importantly, if only one person is making those decisions, we have a clear person to blame.

7:58The president can't just say, I'm just doing what my advisors told me. J.D., he said that. The president is responsible to the people. He can be removed upon bad behavior, in theory. He can actually make decisions and get things done. If you have more than one executive, you get factionalism, you get deadlock, you get resentment from whoever opinions are overruled. For a country like England with an unaccountable king, you do want a powerful executive council to help keep such a person in check. But for America, we've got an elected president and, you know,

8:29as of the 22nd Amendment in 1951, we have term limits on that president. Of course, we have impeachment. So, nothing to worry about.

8:40I throw it to you. So, I think what Hamilton is trying to balance here a little bit is the idea of a king, which would be a very, very strong executive power, right? Maybe absolute in some sense. And saying, we don't want to go too far the opposite direction because, there's a quote here from this part, a feeble executive implies a feeble execution of government. A feeble execution is but another phrase for a bad execution and a government ill-executed, whatever it may be in theory

9:12must be in practice, a bad government. So, thinking about literally taking the term executive as execution of the law, like prosecution of the things that need to get done, wartime, wartime powers, right? Commerce, these kinds of things. But he wants to make sure that we're not stripping the executive branch of the ability to actually effectively run the government in that sense. So, we have to kind of keep that in mind. One of the things I like, 7D is,

9:43I guess, like the other ones. They illustrate these tensions about things that are actually genuinely good that you have to still balance with their excesses. And so, Hamilton goes hard on the idea that you really need to have a vibrant executive in order to be effective. Good government means having things get done. And having a plurality, a plural executive is going to temper that and make it difficult for there

10:14to be actual effective execution. And as Mark said, that tempering in his mind was coming from the rest of the government. The challenge, of course, with effective execution is the control of the execution. And this theme is throughout all of these. Every branch of government is being, well, there's a virtue of this branch of government. This is a thing that's going to do well and we want to enable it to do it well. But there's things that are going to screw it up. And if it does these things wrong or improperly or not effectively,

10:44then it's going to be a problem. And so, you get this kind of classic thing that most of us learned in civics class. Like the branches of government were designed to sort of distribute power and work against one another and in concert with one another to sort of balance out their powers that checks and balances argument. And I think you get that illustrated here. And I think you also get illustrated a certain kind of hopefulness about where those ultimate checks and balances are going to come from.

11:15This one, I think you particularly see that the way in which your government runs ultimately is going to depend upon the individual people that are in the government. There are actual checks and balances. Some of those process things happen, but it's all always made up of people. And so when you have something like we're going to get people out and they're only going to serve as long as they're on good behavior, well somebody has to hold them accountable for good behavior. Other people have to hold them accountable. And the people who are being held accountable for good behavior,

11:46the whole point is that they're doing their job well. And that part I think is also throughout this whole thing. It's not clear how you deal with people just either incompetently or purposefully doing a terrible job. Yeah. So I think it's important to point out that he wants an energetic and unitary executive, but that is in par because it's easier to be checked that way, right? Yes. Because we can attribute responsibility

12:17and blame and potentially do something about it when we have a corrupt executive. So I think it can be misleading to hear this and think, ooh, we must have a super strong executive because he's going to argue also who's giving the summary on the judiciary. Me. So yeah, Seth will tell us how he also wants a very strong judiciary. And one other point to make here is that in each branch, the same property could be beneficial or hurtful. So we'll see

12:47with Madison that in a way dissension is a good check on the possibility of a tyranny of the majority. You have different interests, different factions, and we want dissent in a way. We want the legislative process to be slowed down by that. But if that happens in the executive, then the laws that are already on the books might never be enforced because there's dissension within the executive. So I don't know. It makes sense to me. Do we have any dissents

13:18here about whether this makes sense? I don't have any problem with the idea that the executive function should be unitary, meaning one person. But I think there is a tension here when, you know, this might be something familiar to those of you who have jobs.

13:37You know, when they say, oh, we're bringing in a new leader for your department, and then you meet this person and you're like, manager. Right? Not a leader. There's a difference between somebody who leads and who inspires and who drives and who takes action and somebody who is just making sure the trains are running on time, so to speak. And I think that tension is that Hamilton's, it's easy to argue for a single person. It's harder to argue that that person should be that

14:07energetic figure because of the risk associate. You know, like, because you think about a lot of European countries that have federations, like, you don't even know the names of the presidents because they just, that's not the type of function that they're looking for out of their executive, right? And so it's a possibility that that could have been something we had, but it's not what we do in fact have. So we should see also, so this, this against, of course, the background of, it's a federal system, so it's not like the only executive is the president, it's the executive in charge of the

14:38federal stuff, which was a fairly limited amount of stuff. The governors and the states can sort of give, however many, you know, structure their governorships and their internal parliament bodies however they want. So it's okay, right? Even Hamilton says here in some, he points to some historical examples, and if it's really like they have a definite different, okay, so this is the guy who's in charge of the city and this is the one who's in charge of international relations. Like you can divide executive powers as long as it's really clear who is doing what.

15:10Are you saying, sorry, I thought you were going to imply that at the time he was writing this, that separation was much more clear and the sphere of control of the states was much larger and that over time this executive function has gained that much more power or was that? Well, I mean, that's kind of one of the things that we would be arguing, right? With actual amendments to the constitution and just with the march of history that states are sort of less important, you know, in some way. Obviously, they still do a lot,

15:41but in terms of those strict separation and seeing, right, this is one of the things that, you know, ultra conservatives want to go back to is having, hey, you know, we wouldn't have such a powerful executive if you had kept the federal government in its little lane doing only what the federal government is supposed to do and not doing potentially everything. So we have two systems of checks and balances, Mark, which I think is what you're pointing to. One is between the branches of the federal government and one is between federal power and state power.

16:11And this is the one of the things, I don't know if you remember this from Tocqueville, which I think we also did a live show for Tocqueville, but he was very impressed by that. It gave him great hope for America's future because it is very different in European governments, right? There isn't a lot of local power. Government is very centralized and even now, you know, if you're worried about election tampering at the federal level, let's say, just bringing that up randomly has nothing to do with what's going on. It kind of, you know,

16:42I read a bit about this. It heartens me that it is actually very hard to control state and local governments which, you know, are responsible for running the elections. And I'm not going to, I'm not saying that that can't be overcome, but I think it's much more difficult than in many other countries. So the, the balance between states and federal power is, I think, extremely important. And as a possible transition to our talking about the courts, right, the executive is

17:12somebody that is supposed to be, you know, actually, maybe, maybe we should just get going on that and I'll, the executive is not supposed to be making laws was, was the thing that I was having in mind, right? The thing that we object to now, which some people, you know, executive orders, this is just not something that would have been pictured here. But I think we're getting into the difference between, right, legislators write the laws, the judges supposedly interpret the laws, but if you're going to execute the laws, you also have to interpret the laws,

17:42right? It's just that maybe the judges will tell you if you're doing it wrongly. So, you know, they're all supposed to work together. Right. Okay. So, I guess that's our transition to Federalist and Anti-Federalist number 78. So, we'll start, this is exposition and I will have editorial, I will clearly label which part is my opinion versus, so, Federalist paper 78 is entitled a view of the Constitution of the Judicial Department in relation

18:13to the tenure of good behavior. Now, a tenure of good behavior here, this is not about conduct. It's the equivalent of saying a lifetime or permanent appointment. So, Hamilton's argument is that for the American judiciary to function effectively, particularly with respect to the Constitution, judges must be independent and nothing contributes to this more than permanent tenure. Now, this may seem obvious to you here in Wisconsin, but I'm from Texas. And in Texas, we elect our

18:44judges on partisan party lines and for limited terms. So, you'll humor me if I walk a little bit through his argument. So, he says, the judiciary is the weakest of the three branches. It has neither sword nor purse. In other words, it's not the executive. Right? And it's not the legislative. It can never attack either of the other two branches. And in fact, it needs to be protected from both of them. The judiciary can also, even though it may occasionally

19:15oppress individuals, cannot threaten the general liberty of the people, which ultimately means that liberty has nothing to fear from the judiciary alone, but everything to fear from its union with either one or both of the other two branches.

19:34Now, a union of the judiciary with another branch would come through the overpowerment, awe, or influence of the judge, not the other way around because the judiciary is weaker. So, they need independence and protection, and that is best provided through tenure of good behavior. Now, in Anti-Federalist number 78, Brutus argues that the only reason for permanent appointment of judges is to counteract the influence of an executive that also has a permanent appointment. In other words, a king.

20:07Monarchs have a strong incentive to perpetuate and expand their power because they live, they have it as long as they live and they pass it to their children. So, you want to make judges who can check that power immune from their influence. Right? It's a real danger. But, for elected officials and people that don't have lifetime appointments, you don't need to have permanent appointment of judges. And since our president isn't that way, we don't need permanent appointment of judges.

20:39So, even though the Federalist and Anti-Federalist are arguing across purposes here, both are concerned about the same thing, which is the union of the judiciary with one of the two other branches. That was exposition. You may now disregard the following. I think there's a lot implied and also hinted at and sometimes addressed in some of the other parts of the text that I didn't bring up, but I think there's an assumption here that the type of people who

21:10become judges are different than those who become legislators and executives. Now, that could be by temperament, by education, or it could be the role itself. But there are parts where they explicitly say, oh, judges have to learn the law, and that's why they're different than legislators, which is a very strange thing to say. I think there's also an assumption that judges will tend to be unbiased or objective unless they are influenced from the outside. Now, the Anti-Federalist paper admits of the possibility of corruption and ill intent on the part of

21:40the judges, but the Federalist paper does not. However, neither actually names or addresses it explicitly. So, structurally, the Constitution acknowledges the possibility or the possible venality of legislators and executives, and that's why you have checks and balances, which includes the judiciary. But, venality on the part of the judiciary is not considered. There is no check in the Constitution if you have a horrible person as a judge. Except for impeachment.

22:10Wait, wait, wait, I'm getting that.

22:15If there were, the only body that could check the power of the courts would be the people from whom the authority is derived, right? Now, that authority is indirect through the executive of the legislature which can do impeachment which declares that the president, the vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors, which is a very, very, very narrow

22:46and limited scope for which to be able to bring charges. There is no possibility for the people from whose will all of these organizations to directly address or impeach a judge, particularly not a federal judge anyway, in the same way. So, my question is that, you know, are there these implied assumptions about the judiciary, the role of the judiciary, and about the type of person that would inhabit that role that created a blind spot and that structurally, the way the Constitution

23:17was set up with these checks and balances ultimately just missed it. What would you do if you were a founding father? I mean, we can't ensure that all the branches don't go bad and according to the same party, so you do your best on checks and balances, but yeah. We're talking about the federal judiciary, right? Yeah. I mean, you can limit it to the Supreme Court. I think about this in the same way that I think about states that have referendums. It's a highly unwieldy

23:47process to be able to referendum like a law or a statute or something like that. And so you see that, for example, in California, it's just complete chaos when you have a thousand measures on the ballot where all the people are voting on a referendum on whether or not parking signs should be here or there. Weirdly phrased, you shall not have the parking sign, but unless it's next to the other parking sign and if you disagree you're bad. Yes or no? Yes. This is

24:17precisely what the founders do not want, right?