Theoretical basis for the constitution (Homework Help)?

Question

I'm writing about the theroetical basis for the constituion for a government essay, I was told I would fine the answer in Federalist papers 47 48 and 49. Am I correct in thinkng that the basis is (to quote the constitution fo Georgia) "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other"

Is that right?

Answer 1

Yea thats pretty much it. Madison who wrote all 3 ( well actually Hamilton was coauthor of one i think ) said what you said and then gave examples of virginia and pennsylvania and others as examples of why.
He/they feared that public passion sometimes would too easily alter the governmental foundation and so they really wanted to have the 3 distinct bodies but also keep one from encroaching into the other.
( like when judges legislate from teh bench, legislators pursue foreign policy, or executives ignore law... which is all happening at times unfortunately )

Answer 2

This is accurate, and the Federalist Papers are certainly an important source in understanding the nature and interpretation of the Constitution -- but with the caveat that by the time they were written, they were influenced to some degree by the issue of slavery, which dominated the political discourse.

One other source I would recommend is "The Spirit of the Laws" by Montesquieu. It was highly influential, particularly in the multi branch nature of the Federal Government, with separate branches for the Judiciary, Executive and Legislative. It's tough reading, but the drafters were very intimately aware of it and it was enormously important.

Another issue that might be of interest is the nature of "law" as it is created in the Constitution and how it is asserted as a matter of reality: Specifically, the United States Code is the collection of laws enacted pursuant to Acts of Congress. But then, in applying them, the Executive Branch issues regulations which fill out the law -- though they are not ever voted on, regulations and "Administrative Law" has great impact on day to day lives of business and individuals.

Another is the concept of "judicial law" insofar as courts, as they interpret the statutes and regulations, can shape a law into applying in all sorts of ways.

One other example that has interesting concepts as to how the branches relate is earmarks. Those are specific amounts of money that are identified for specific projects in a Member of Congress's district. The thing is, generally though not always, that these earmarks don't show up in the law itself, but rather in the report that accompanies the law -- effectively a nonbinding explanation of the legislative text. Though it is nonbinding, the executive branch agencies take it seriously and view it as tantamount to law, and were they to not spend the money in the specified way, the Appropriations Committee, the chief dispenser of earmarks, would likely bring some form of retribution for it.

Hope this helps a little, but these are some theoretical bases and issues related to separation of powers.

Answer 3

absolutely correct