Wednesday, June 26, 2013

James Madison was a WOLVERINE

Interesting tidbit from Justice Scalia's Windsor dissent: He seems to endorse congressional guerilla warfare against the presidency as the right way for separation of powers questions to be hashed out between the legislature and executive.
Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition,"The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing toconfirm Presidential appointees to the elimination offunding. (Nothing says "'enforce the Act" quite like
". . . or you will have money for little else.").
Slip. op. at 14.

I bet I can guess his vote in Noel Canning.


PG said...

I've been pretty skeptical of Scalia's Federalist Papers quotes since the ACA decision.

PG said...

Yeah, what No 51 actually is talking about is how to ensure "against a gradual concentration of the several powers in the same department," which ambition counteracting ambition ensures because each branch will be jealous of the others' powers and attempt to gain them for itself.

A part of No 51 for Scalia to consider:

In a free government the security for civil rights must be the same as that for religious rights. ... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

And Yale's Avalon Project lists Fed No 51 as Madison or Hamilton. So maybe it was Hamilton who was a wolverine!