Academic journal article Texas Review of Law & Politics

Judicializing Federative Power

Academic journal article Texas Review of Law & Politics

Judicializing Federative Power

Article excerpt

I. INTRODUCTION

The intellectual origins of federative power account for the beguiling nature of, and approach to, that subject in American constitutional law and history. Federative power is Locke's description of the state's authority concerning "war and peace, leagues and alliances," or external affairs.1 Locke identified federative power alongside executive power and legislative power, but placed federative power wholly in the hands of the executive, or a single magistrate who would possess the executive power (which was distinct in Locke's formulation).2 He plainly understood the necessities that marked the vicissitudes of foreign affairs, explaining that matters of war and peace could not be directed by "antecedent, standing, positive laws" and must be dealt with through the exercise of prudence and wise judgment.3 Despite Locke's influence in the founding generation,4 it is notable that the Constitution does not adopt his taxonomy. Rather, the Constitution's allocation of power more closely resembles that of Montesquieu, whose understanding of separated and divided powers serves as the fundamental structure for our constitutional scheme.5 In this sense, it can be said that we have a kind of intellectually Lockean constitution that is moderated (and much improved) by Montesquieu's formal separation of powers.

Montesquieu identifies the executive and legislative powers, but adds a third distinct power, the power of judging.6 The federative power, however, disappears as a distinct power in Montesquieu, for he joins domestic and foreign affairs powers in the unity of an executive and gives independence to the judicial power (which he constitutes with juries of the defendant's peers; Locke acknowledged the judicial power but placed judicial power in the legislature). In Book XI of The Spirit of the Laws, when he introduces the judicial power, Montesquieu says that liberty in a citizen is "that tranquility of spirit which comes from the opinion each one has of his security."8 Perhaps, then, it is no accident that federative power is not expressly and distinctly revealed in Montesquieu's allocation of powers. As Roger Barrus has suggested, perhaps Montesquieu sensed something dangerous about federative power (at least as Locke had described it) and thus needed to obscure that power in order to give citizens a greater sense of security about their freedom.9

In light of these different approaches by two thinkers of significant repute and distinction among the Framers, it is important to ask whether the federal Constitution is intentionally ambiguous about federative power. And when we talk about federative power and the Constitution, it stands to reason that our focus is predominandy upon the distribution of that power among the political branches of our government. The Framers explicitiy rejected Locke's formal allocation of federative power by, instead, distributing powers of war and foreign affairs in both the Congress and the President: the President serves as Commander-in-Chief,10 has the power to make treaties, and can appoint ambassadors, ministers, consuls, and other officers to assist him in carrying out foreign policy; Congress has the power to declare war, grant letters of marque and reprisal, make rules for the armed forces,12 and provide funding for the military and military operations.13

Though the Constitution's formal division of power appears to be more Montesquieuean than Lockean, and though the federative power (while less obscure than with Montesquieu) remains at least ambiguous, the Framers did not entirely agree upon the scope of the powers over war and peace that had been assigned to the two political branches. In addition, there was some sympathy for at least the theoretical basis for Locke's federative regime. Publius, after explaining in The Federalist No. 70 that energy in the executive is essential to good government,14 reminds us in The Federalist No. 74 that the Commander-in-Chief power should obviously belong to the Executive because "[o]f all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.