Mar 082013

As I watched the proceedings in the Senate last evening, I thought that James Madison would have approved of the process. In Federalist Number 51, he stated that in order to preserve liberty, “each department should have a will of its own.” He also said, “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 

The Separation of Powers, often referred to as our system of checks and balances, stems from an idea espoused by Charles-Louis de Secondat, Baron de La Brède et deMontesquieu. Montesquieu believed that a governmental system with powers divided amongst different entities was a government which was less likely to become corrupted. It is one of the central principles used by the Framers when constructing the Constitution. James Madison actually used the phrase “Checks and Balances” in Federalist Number 51. One of the checks held by the Legislative Branch on the Executive Branch is the Appointments Clause found in Article II, Section 2, Clause 2 of the Constitution. It reads as follows: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

Why was this clause added by the Framers? The answer is found in the notes taken at the Constitutional Convention on September 7, 1787. As this clause was discussed, Gouverneur Morris stated, “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” Thus it is the President’s responsibility alone to select an appropriate nominee for a post. However, the Senate provides a check, or a measure of security, on the suitability of the nominee. It also gives the Senate the ability to “advise” the President as to concerns it might have about the nominee, as well as the ability to refuse to confirm the nominee altogether. If the nominee is confirmed, the President may use the advice given by the Senate to decide to select another nominee. It is hard to believe this would occur in present day America, but the attached document is an invitation extended by George Washington on August 21, 1789 to the Senate to advise him on the terms of a potential treaty with the Southern Indians. 

The Senate’s ability to offer advice and give consent was at the root of yesterday’s filibuster by Senator Paul. I believe that James Madison would have approved of Senator Paul’s questioning of Mr. Brennan’s nomination, as well as using the opportunity to clarify the Administration’s position of the use of drones against American citizens within the United States. Once again the wisdom of our Founding Fathers continues to serve us well.


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