Posted on 09/09/2010 7:54:59 AM PDT by Publius
Starting with the British government, the earnest professor of history looks at the state governments to find how their designs differ from the plan of the Convention and the proposed Constitution.
1 To the People of the State of New York:
2 Having reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government and the distribution of this mass of power among its constituent parts.
3 One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the Legislative, Executive and Judiciary departments ought to be separate and distinct.
4 In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.
5 The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
6 No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded.
7 The accumulation of all powers – legislative, executive and judiciary – in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
8 Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
9 I persuade myself, however, that it will be made apparent to every one that the charge cannot be supported and that the maxim on which it relies has been totally misconceived and misapplied.
10 In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
11 The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.
12 If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.
13 Let us endeavor, in the first place, to ascertain his meaning on this point.
14 The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry.
15 As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty, and to have delivered in the form of elementary truths the several characteristic principles of that particular system.
16 That we may be sure then not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.
17 On the slightest view of the British Constitution, we must perceive that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other.
18 The executive magistrate forms an integral part of the legislative authority.
19 He alone has the prerogative of making treaties with foreign sovereigns, which when made, have under certain limitations the force of legislative acts.
20 All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils.
21 One branch of the legislative department forms also a great constitutional council to the executive chief as, on another hand, it is the sole depositary of judicial power in cases of impeachment and is invested with the supreme appellate jurisdiction in all other cases.
22 The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.
23 From these facts by which Montesquieu was guided, it may clearly be inferred that in saying, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “If the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.
24 His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this: that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.
25 This would have been the case in the Constitution examined by him if the King, who is the sole executive magistrate, had possessed also the complete legislative power or the supreme administration of justice, or if the entire legislative body had possessed the supreme judiciary or the supreme executive authority.
26 This, however, is not among the vices of that Constitution.
27 The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it.
28 The judges can exercise no executive prerogative, though they are shoots from the executive stock, nor any legislative function, though they may be advised with by the legislative councils.
29 The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort.
30 The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.
31 The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.
32 “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”
33 Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”
34 Some of these reasons are more fully explained in other passages, but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
35 If we look into the constitutions of the several states, we find that, notwithstanding the [emphatic] and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
36 New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.”
37 Her constitution accordingly mixes these departments in several respects.
38 The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments.
39 The President, who is the head of the executive department, is the presiding member also of the Senate, and besides an equal vote in all cases, has a casting vote in case of a tie.
40 The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department.
41 Several of the officers of state are also appointed by the legislature.
42 And the members of the judiciary department are appointed by the executive department.
43 The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this fundamental article of liberty.
44 It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.”
45 This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the Convention.
46 It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.
47 In the very constitution to which it is prefixed, a partial mixture of powers has been admitted.
48 The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments.
49 The members of the judiciary department, again, are [appointed] by the executive department and removable by the same authority on the address of the two legislative branches.
50 Lastly, a number of the officers of government are annually appointed by the legislative department.
51 As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have, in this last point at least, violated the rule established by themselves.
52 I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution and even before the principle under examination had become an object of political attention.
53 The constitution of New York contains no declaration on this subject but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments.
54 It gives, nevertheless, to the executive magistrate a partial control over the legislative department, and, what is more, gives a like control to the judiciary department, and even blends the executive and judiciary departments in the exercise of this control.
55 In its council of appointment, members of the legislative are associated with the executive authority; in the appointment of officers, both executive and judiciary.
56 And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department.
57 The constitution of New Jersey has blended the different powers of government more than any of the preceding.
58 The governor, who is the executive magistrate, is appointed by the legislature, is chancellor and ordinary, or surrogate of the state, is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches.
59 The same legislative branch acts again as executive council of the governor and with him constitutes the Court of Appeals.
60 The members of the judiciary department are appointed by the legislative department and removable by one branch of it on the impeachment of the other.
61 According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates.
62 In conjunction with an executive council, he appoints the members of the judiciary department and forms a court of impeachment for trial of all officers, judiciary as well as executive.
63 The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature, and the executive power of pardoning in certain cases to be referred to the same department.
64 The members of the executive council are made ex-officio justices of peace throughout the state.
65 In Delaware, the chief executive magistrate is annually elected by the legislative department.
66 The speakers of the two legislative branches are vice presidents in the executive department.
67 The executive chief, with six others, appointed three by each of the legislative branches, constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges.
68 Throughout the states, it appears that the members of the legislature may at the same time be justices of the peace; in this state, the members of one branch of it are ex-officio justices of the peace, as are also the members of the executive council.
69 The principal officers of the executive department are appointed by the legislative, and one branch of the latter forms a court of impeachments.
70 All officers may be removed on address of the legislature.
71 Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other.
72 Her constitution, notwithstanding, makes the executive magistrate [appointed] by the legislative department, and the members of the judiciary by the executive department.
73 The language of Virginia is still more pointed on this subject.
74 Her constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.”
75 Yet we find not only this express exception with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are [appointed] by the legislature, that two members of the latter are triennially displaced at the pleasure of the legislature, and that all the principal offices, both executive and judiciary, are filled by the same department.
76 The executive prerogative of pardon, also, is in one case vested in the legislative department.
77 The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers at the same time to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.
78 In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.
79 It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs, and the appointment of officers in the executive department down to captains in the army and navy of the state.
80 In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature, and the executive prerogative of pardon to be finally exercised by the same authority.
81 Even justices of the peace are to be appointed by the legislature.
82 In citing these cases in which the legislative, executive and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several state governments.
83 I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.
84 It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers, and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.
85 What I have wished to evince is that the charge brought against the proposed Constitution of violating the sacred maxim of free government is warranted neither by the real meaning annexed to that maxim by its author nor by the sense in which it has hitherto been understood in America.
86 This interesting subject will be resumed in the ensuing paper.
Madison’s Critique
This is a straightforward piece in which Madison answers the critics who have stated that the powers of the three branches of government are too intermingled. His approach is twofold: that such arrangements are both sound in theory and in current practice in the real world.
First, the theory. Madison was, of all of the Founders, perhaps the one most influenced by Charles de Secondat, Baron de Montesquieu, who was the late Enlightenment’s leading political theorist. Madison was by no means the only one; both Federalists such as Hamilton and anti-Federalists such as Brutus, Cato and deWitt made reference to Montesquieu in papers already published at the time of this essay.
11 The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.
The work most commonly cited is Montesquieu's Spirit of the Laws, published in French in 1748 and in English in 1750. He was, in the opinion of the 19th Century British historian and politician Thomas Macaulay, the heir to Machiavelli in the field of political analysis, and indeed there are stylistic similarities between the Spirit of the Laws and such Machiavellian classics as the Discourses on Livy.
It was Montesquieu who classified the French government of his day into two classes of power, the sovereign and the administrative, and the latter he broke down into the now familiar legislative, executive and judicial branches that form the structure of American government. These, he stated, worked best when their functions were isolated. The critics of the proposed Constitution took that to mean that the more isolated, the better. Not so, says Madison.
23 From these facts by which Montesquieu was guided, it may clearly be inferred that in saying, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “If the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.
Thus the two principles of American constitutional structure are both seen in Montesquieu: the principle of the separation of powers, and the principle of checks and balances, and it is clear to Madison that the latter will not be possible without modifying the former to include at least a partial crossover of power. This, he states, was observed by Montesquieu himself in his study of the paragon of constitutional government of the early 18th Century, that of Great Britain (15).
17 On the slightest view of the British Constitution, we must perceive that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other.
But they cannot be too intermingled. Madison quotes Montesquieu again in a statement that must resonate with modern critics of the tendency of the American Executive Branch to attempt to govern through bureaucratic fiat.
32 “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”
Then comes a quote which must resonate with modern critics of the American Supreme Court’s tendency toward judicial activism.
33 Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”
It is too much to claim that Madison foresaw any of these developments at the time, but the fact that he quotes Montesquieu on their dangers proves that he was aware of the possibility. How best to guard against it? By limited crossover within separated branches of government. It was no particular innovation, in fact, for instances of this compromise abounded within existing state governments.
35 If we look into the constitutions of the several states, we find that, notwithstanding the [emphatic] and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
The balance of the piece is an enumeration of this, state by state. Madison cites the governments of New Hampshire (36), Massachusetts (43), New York (53), New Jersey (57), Pennsylvania (61), Delaware (65), Maryland (71), Virginia (73) – whose constitution was written by Thomas Jefferson, George Mason and significantly, by Madison himself – North Carolina (77), South Carolina (78) and Georgia (80). Rhode Island and Connecticut are passed over because they were “formed prior to the Revolution and even before the principle under examination had become an object of political attention.” (52)
Madison does not want this essay misconstrued as advocacy for any of the particular state constitutions (82). These, he says, were excellent first efforts, but “carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.” (83) The latter is a bit tongue in cheek – the modern reader might need to be reminded, but his contemporaries knew perfectly well that he was referring to himself. He will expand on that dry self-criticism in the next essay and be echoed by Jefferson in the succeeding essay, wherein it will become clear that the writing of the Virginia Constitution offered a vital contribution to that of the new federal one.
Discussion Topics
Are any of the plans of state government better than the Constitution? If so, how and why?
LOL!!!!
You’re talking about Democracy vs. Republicanism. I’m talking about Republicanism and how to apply it to judges. The question is, should our Judicial branch be filtered through the executive branch. The fact is that filter has it’s downsides which you have not addressed. Neither have commented on whether states that elect there judges find themselves in a better or worse situation. Those are the questions that I have. Not for you specifically but the ones I am looking into. Believe me I have a fair grasp of the theory behind Republicanism and the discovery of truth through discourse.
The question I do have for you is, what natural rights exist and are recognized by the Ninth Amendment that are not enumerated in the other amendments?
I do think there is a fair compromise on the extreme that the 17th Amendment took. I think we could Amend the 17th amendment to include a provision for removing Senators by an act of the state legislature. Senators could be popularly elected but they would still be beholden to the interests of the states as separate governments.
I’m talking about Republicanism and how to apply it to judges. - - Through popular vote, the "republican" tag fails to apply.
The question is, should our Judicial branch be filtered through the executive branch. The fact is that filter has it’s downsides which you have not addressed. --- No, I admit the downsides, which were not in our original Constitution.
Neither have commented on whether states that elect there [sic] judges find themselves in a better or worse situation. - - Straw man argument; State Governments are far different from the design of the Fed Government.
Believe me I have a fair grasp of the theory behind Republicanism and the discovery of truth through discourse. - - but you want popular control over the most important part of our republic, as it is over the other two. I firmly disagree with your premise and your conclusion.
The question I do have for you is, what natural rights exist and are recognized by the Ninth Amendment that are not enumerated in the other amendments? - - - What a strange question. The very presence of Amendment IX was to not have the government defining rights not enumerated. What's more, you are talking about "natural rights" instead of constitutional rights. The question is very strange, bordering on the metaphysical.
I'm sorry but I could not let this pass as it is just plain wrong.
There are under our Constitution three coequal branches of government. The problem we currently have is due to the fact that the legislative and executive branches have failed to assert their powers to check the judicial branch.
I strongly suggest that you take the time to listen to the information at the link below!
http://www.judicialsupremacyvscoequalbranches.com/?page_id=2#video
you are advocating popular control = democracy.
No not at all. I’m not sure you know what the word democracy means. Popular election of representatives, or judges in this case, isn’t democracy. That is Republicanism. In a Republic one elects Representatives to decide things for the whole. Democracy would be if we had the people directly vote on Supreme Court decisions. Maybe you just got off on an idea and are defending it no matter what. Moving on.…
The very presence of Amendment IX was to not have the government defining rights not enumerated.
I’m sorry but you’re off on this one too. The purpose of the Ninth Amendment was to make it clear that natural rights not otherwise enumerated in the Constitution were still to be recognized. One problem we have today is that the USSC has decided the Ninth Amendment defending natural rights is almost powerless in the face of the Enumerated Powers in the Constitution. Most scholars agree, between the Commerce Clause and the Elastic Clause, the USSC has all the justification it needs to let the government force us to buy health care. Our constitutional problem is that the USSC is made up of people defer to the other two branches, Scalia and Kagan both for instance.
Madison and the founders strived to NOT give the popular voice substantial powers in the government.
I’m sorry but I can’t let this one go either.
Madison was primary proponent of the Virginia Plan, which had a strong Bicameral Legislature. Both Camerals (ha! Camerals!) of which were to have proportional representation. If you’re arguing against a Republic via proportional representation, you’re arguing against Madison.
I agree, they should all be checking each other. When they don’t, individuals lose.
I certainly think that would be an improvement over the current situation but I’m going to have to think it through before I fully endorse the idea.
I wrote that the House/Senate and Executive are decided by vote; the Judicial by appointment.
How is that “just plain wrong?”
You have me laughing; at what point does a form of government shrink from a republic to a democracy? Obviously, our opinions differ, but I’m not going to go ad hominem on you.
For clarification: The republican form of government I set as a baseline is the one that our Founders provided. After the 17th Amendment the States lost their influence in the legislative powers and, with that, the judicial appointment processes. It was then no longer a republic.
I won’t wait for the people to vote on our president’s cabinet members, or judicial decisions, to call a government a democracy. It crossed the line long before that; and I will not defend those changes as republican in character.
Your assertion was true, until Madison changed his mind and opted for the Connecticut Compromise on the Senate. He wrote well of the resulting Senate design in the Federalist.
He did write well and made a persuasive argument for the Great Compromise. I’m not sure if he changed his mind though. The nationalists in the convention made the argument that even without proportional representation, national power would naturally flow to the rich and powerful states. They said that if the constitution didn’t recognize this natural course of power, its foundation was weak.
I can see one of three justifications for Madison’s Federalist Paper arguments,
1- He thought state representation in the Senate would be an enduring bad idea but it was the best that could be done given the fact that the constitution would be ratified by the states and not the people. It would one day have to be eliminated over the objections of the small states.
2- He thought it would be a bad idea but that the Senate would diminish over time through a series of incremental changes in tradition (my view), similar to what has happened with the British House of Lords.
3- He changed his mind completely and thought it was a fantabulous idea.
I think the 17th Amendment is some mixture of 1 and 2.
I quoted the part I considered to be wrong in my post to you.
No one of the three branches of government is “over the other two”. At least that’s how the founders saw it,. In fact the judicial branch was thought by them to be the least dangerous because their job was simply to interpret the law and not make it as they have been doing now for years!
but you want popular control over the most important part of our republic, as it ["it" being "popular control"] is over the other two.
I was not stating that the Judiciary is over the House and Senate.
OK! Good!
Thanks for the clarification as to what you meant to say.
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