The Federalist Papers - Alexander Hamilton [15]
Finally, The Federalist argues that separation of powers prevents or replaces direct recurrence to the people as the means of resolving conflicts among the branches. This is an advantage that needs further explanation. The people of the United States legislate the Constitution for themselves by ratifying it; but they never subsequently judge or execute it directly.29 There is no national initiative or referendum to decide whether a law is constitutional, for example. In fact, the people are excluded altogether from the administration of the government; operating the machinery of government is the job of our elected representatives and appointed officeholders (No. 63, p. 382). To be sure, the people have the precious right, under the Constitution, of exercising their sovereign opinion over the whole government through regular elections, and they may amend the Constitution according to the procedures outlined in Article V or new-model it according to their revolutionary right under the natural law (Federalist No. 43, p. 275). The political and constitutional soundness of particular laws, executive orders, and court decisions, however, is always decided in the course of conflict and co-operation among the departments.
In this way, the deliberative give-and-take among the branches replaces direct appeals to the people as the means to decide questions of constitutional propriety. This effect of separated powers, Publius explains in No. 49, encourages reverence for the law and veneration of the Constitution: Though public opinion or the consent of the governed is the originating authority of the Constitution, the public learns gradually to measure its opinions by the Constitution. The Constitution itself becomes authoritative for public opinion. The Constitution and the public opinion that reflects it—what Publius calls "the reason for the public"—then become sovereign over the government. In the words of Federalist No. 49, "it is the reason, alone, of the public, that ought to control and regulate the government. The passions [of the public] ought to be controlled and regulated by the government" (p. 314).
So the reason of the public controls the government, which in turn regulates the public’s passions. Notice that this is not a formula for the direct rule of reason over passion in politics. It calls rather for the reason "of the public" to control the passions through the mediation of the government. The direct rule of reason over passion in politics might be said to dictate the suppression of rights and freedom in the name of duties or virtues. Publius does not endorse this, but neither does he allow rights to sink to their lowest common denominator, to become expressions of mere self-interest or passion. Instead, he calls for the "reason of the public" to become responsible for the passions of the public: He defends a form of government that will encourage rights to be claimed and exercised responsibly. The Federalist’s concern for veneration of the Constitution shows that a purely calculative or self-interested attachment to government is not sufficient to secure republicanism. The Constitution must attract the loyalty, admiration, pride, and even reverence of American citizens if the rule of law is to be firmly grounded—if republicanism is to be responsible.
In the end, then, one needs an opinion of the Constitution’s goodness to attract, define, and hold Americans’ passions and interests in a decent republican order. This means a politics of public opinion, not just of fractured interests a` la Federalist No. 10.