Mike Pence and James Madison; Federalist Paper 51

(CNN) Pence says he looked to James Madison as he certified the 2020 election for Biden. Quoting,

Asked during an event at the University of Iowa who had told him to buck Trump’s plan, Pence responded, “James Madison.”…The former vice president also cited the Bible, saying, “Psalm 15 says he who keeps his oath even when it hurts.”

What did Pence mean? I thought the media would engage constitutional scholars  for a view of the inside of Pence’s head. But they didn’t, leaving Madison’s contribution in the shadow of Dolly Madison’s purported introduction of ice cream to the White House.

Madison is thought to have written 29 of the 85 anonymous Federalist Papers, widely considered the most important political texts of U.S. democracy. Pence most likely referred to No. 51, written by either Hamilton or Madison, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. The lack of formatting makes the  .gov versions  hard to read. Alternate sources are publicly available; see (The Avalon Project) No. 51. A formatted version with interpretation: (Bill of Rights Institute) Federalist Papers No. 51 (1788).

I re-read  No. 51, picking at it as Pence may have. The likely interpretation comes out of  textual order. The problem: The executive branch might seek to be self perpetuating, a form of dictatorship. Quoting,

Ambition must be made to counteract ambition…If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

In the pivotal moment, Pence, as President Pro Tempore of the Senate, saw his obligation as control, as check on power.  Though he did not have No. 51 in hand, he backed up a few hundred words, and recalled,

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

By implication, it should not be a power of Congress, the legislative branch, to select the President,  head of the Executive Branch.

The Federalist Papers are not law.  They are essays written by some of the framers of the Constitution, providing insight into their intent not visible in the terse text of the Constitution. A scholar or jurist of  “strict construction” literalness might never refer to the papers in opinions. More interpretive jurists often refer to the Papers.

Mike Pence, arch-conservative,  chose to immortalize the intent of the Founding Fathers in tandem with their creation, the Constitution of the United States.

You may or may not like the political views of Mike Pence.  Yet history will grant him this: He was the man of the hour. 

Thank you, Mike.


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