Posted on 09/13/2010 7:50:32 AM PDT by Publius
The earnest professor of history examines the state governments of Virginia and Pennsylvania with a fine-tooth comb, comparing how the states separate their powers.
1 To the People of the State of New York:
2 It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other.
3 I shall undertake in the next place to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation, which the maxim requires as essential to a free government, can never in practice be duly maintained.
4 It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.
5 It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.
6 It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.
7 After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each against the invasion of the others.
8 What this security ought to be is the great problem to be solved.
9 Will it be sufficient to mark with precision the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?
10 This is the security which appears to have been principally relied on by the compilers of most of the American constitutions.
11 But experience assures us that the efficacy of the provision has been greatly overrated, and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government.
12 The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.
13 The founders of our republics have so much merit for the wisdom which they have displayed that no task can be less pleasing than that of pointing out the errors into which they have fallen.
14 A respect for truth, however, obliges us to remark that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate supported and fortified by an hereditary branch of the legislative authority.
15 They seem never to have recollected the danger from legislative usurpations which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
16 In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger and watched with all the jealousy which a zeal for liberty ought to inspire.
17 In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended on some favorable emergency to start up in the same quarter.
18 But in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power, and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people with an intrepid confidence in its own strength which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes, it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.
19 The legislative department derives a superiority in our governments from other circumstances.
20 Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.
21 It is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.
22 On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.
23 Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter which gives still greater facility to encroachments of the former.
24 I have appealed to our own experience for the truth of what I advance on this subject.
25 Were it necessary to verify this experience by particular proofs, they might be multiplied without end.
26 I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations.
27 I might collect vouchers in abundance from the records and archives of every state in the Union.
28 But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two states attested by two unexceptionable authorities.
29 The first example is that of Virginia, a state which, as we have seen, has expressly declared in its constitution that the three great departments ought not to be intermixed.
30 The authority in support of it is Mr. Jefferson who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it.
31 In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting Notes on the State of Virginia, p. 195.
32 “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.”
33 The other state which I shall take for an example is Pennsylvania, and the other authority the Council of Censors which assembled in the years 1783 and 1784.
34 A part of the duty of this body, as marked out by the constitution, was “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution.”
35 In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings with the constitutional powers of these departments, and from the facts enumerated and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances.
36 A great number of laws had been passed violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people, although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.
37 The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.
38 Executive powers had been usurped.
39 The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied, and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination.
40 Those who wish to see the several particulars falling under each of these heads may consult the journals of the council which are in print.
41 Some of them, it will be found, may be imputable to peculiar circumstances connected with the war, but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government.
42 It appears, also, that the executive department had not been innocent of frequent breaches of the constitution.
43 There are three observations, however, which ought to be made on this head:
44 In this respect, it has as much affinity to a legislative assembly as to an executive council.
45 And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded than where the executive department is administered by a single hand or by a few hands.
46 The conclusion which I am warranted in drawing from these observations is that a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
Madison’s Critique
It is February 1788, and if anyone on either side of the debate thought that the ratification process would be quickly concluded, it is apparent by now that nothing of the sort was likely. What ostensibly was at stake in the Federalist Papers was the ratification of the Constitution by New York – a single, albeit influential, state. What was actually going on was a dissertation on the theory of government, as understood in the late Enlightenment, and how it manifested itself in a plan that proposed to weld 13 colonies together, giving them half a continent in which to test the application of that theory.
In this essay Madison, the scribe and one of the central architects of the Constitution, continues to expound on the theory of the separation of powers and how that is necessarily modified in practice if it is to work at all. The object is to form a single, unified government consisting of three parts that serve to balance one another, not three independent despotisms, each of which serves only to protect and expand its own sphere of influence at the expense of the others. But that, observes Madison, is inherent in the nature of power.
6 It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.
7 After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each against the invasion of the others.
Here the reader moves from the separation of powers to the doctrine of checks and balances. It is, according to Madison, “the great problem to be solved.” (8) In theory any of the three branches might prove a threat in this regard, and in practice over the ensuing centuries, all have. But Madison is in the position of a general who must anticipate where the most immediate threat might arise, and for reasons that constitute the bulk of this paper, that appears to him to be the Legislative branch. That isn’t how things appeared to the authors of the Articles of Confederation or those of the constitutions of the state governments, and Madison is careful to show his respect for their considerable achievements (13). Nevertheless, he feels they had a blind spot.
14 ...they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate supported and fortified by an hereditary branch of the legislative authority.
That, of course, describes the view of an American of Madison’s day toward George III and his Tory government. But as a student of history, Madison was well aware that the principal threat to that arrangement lay in the legislative, in Parliament, and some two decades of civil warfare on that very issue had placed the current King on his throne very much at Parliament’s behest. Moreover, the nascent American state had a number of loyal friends in that Parliament in Pitt and Burke, and it was obvious to Madison where, despite appearances, the real power resided.
15 They [the authors of the Articles of Confederation] seem never to have recollected the danger from legislative usurpations which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
In a true monarchy, according to Madison, the obvious danger is from the royal executive (16). In a pure democracy, he continues, it is the same (17), although in stating so, Madison reveals his own notion of the difference between democracy and representative republic.
17 In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates...
That is a concise description of Pericles’ Athens. The United States is not, however, to be a democracy.
18 But in a representative republic...where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people with an intrepid confidence in its own strength...it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.
Madison insists that the Executive is restrained, and the Judiciary still more so (22), and that the key power in the hands of the Legislative is access “to the pockets of the people” (23). It is a fair case in theory, but what of the real world? Here he turns to his friend Thomas Jefferson, principal author of the constitution of the state of Virginia, to make his point for him, and he quotes him at length. With respect to Virginia’s past experience, reports Jefferson:
32 “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice... An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others...”
The reader, by now, is persuaded that from Madison’s point of view the danger was from the Legislative. But surely in the two centuries that have passed since then, is it not obvious that the danger that actually took form was from the expansion of the Judiciary, post Marbury v Madison, and the remarkable expansion of the Executive in both size and scope? Surely, of all three branches of government, didn’t the Legislative turn out to be the least guilty of that sort of abusive behavior? Not at all. What Madison says next must disabuse the modern observer of American congressional behavior of any such notion. His example is the finding of Pennsylvania’s Council of Censors on the behavior of that state’s legislature, and the complaint is painfully familiar to modern American ears.
36 A great number of laws had been passed violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people, although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.
It is clear from this that the recent behavior of Congress with respect to health care legislation was in every specific what Madison is citing as an “improper act” of the Legislature. In this respect, the Legislative has quite kept pace with the Judicial and the Executive in the blatant usurpation of power, precisely as Madison feared it might.
His case, that separation of powers between the branches of government is by itself inadequate to prevent abuse, is complete. Such restrictions are no more valuable than the paper on which they are written.
46 The conclusion which I am warranted in drawing from these observations is that a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
What checks and balances will serve to make up for the inadequacy of theory in the face of the brutal real world of politics? Madison will address that in the next essays.
Discussion Topic
Madison points out that the Legislative branch tends to accrete power at the expense of the other branches. Experience has shown that all three branches have made grabs for power over the centuries. Why did Madison not see that the competition between branches would be so stiff?
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
Madison was all over the map, unable to make up his mind if he were a federalist or a republican, but was 100% in the federalist camp when this was written and, I believe, being more than a little disingenuous.
Prescient. "A mere demarcation on parchment" is not enough. The constitution, in and of itself, does not protect us. We, the voters, must be educated and vigilant. Thank you for this work which is forcing me to be clear about my own thoughts.
I think he did see that the competition between the branches would be so stiff. His solution was negative checks on power. That is, unless all three branches agreed, a bill could not pass a veto or a law could not be declared constitutional. All three had to agree. They could negate the other two but not do anything on their own. Negative checks.
There are two obvious failures. First, with the Judiciary "legislating from the bench", for example extending marriage to gay couples, something neither the Legislature nor the Executive agreed to. Second, the Executive creating laws through the regulatory process with the acquiescence of the court, for example declaring CO2 a pollutant, without congressional approval.
What I think Madison did NOT see was that congress would willingly give up its power to the executive by creating the regulatory process. Both Republicans and Democrats have decided to do this because, I believe, they want to pass laws without really knowing what they are passing. That is they can go home and claim "I voted for the Clean Air Act!’ and not be held responsible for the result of their vote. The Democrats have decided to do this because they know that they cannot know the unintended consequences of their excessive Socialist laws and need an singular executive to change the laws as consequences are about to occur.
I think that what threw Madison's calculations astray was the advent of party politics - such things as political parties within the United States were yet to form and Washington, for one, hated the very idea. If one's primary political identification is with the branch of government in which one works, there is a natural tendency toward defending one's turf. Throw party identification in there and it's another story. A Senator would, ceteris paribus, have no reason to wish to stretch a little political power just because a President wanted it, but a Whig Senator might want to do so for a Whig President, or a Democrat for a Democrat. Someday soon even the Republicans may master party politics.
You can see how that upsets the balance. In come ways it may be a good thing, but what it does to the separation of powers isn't one of them. IMHO, of course.
We'll see in the next paper how Madison does foresee a dynamic within the Virginia constitution that party politics did end up subsuming, in the form of how few people it might take to prevent the remediation of an untoward assumption of power in that government. (Cue Announcer Voice: "Tune in Thursday for another thrilling chapter...") :-)
Oh, well, typos are an excuse for another BTT.
Washington did indeed hate the very idea of factions in government. Madison however was a very strong advocate for them thinking that they would serve as yet another check on runaway government so I doubt very much that his thinking was overtaken by them having arisen.
It is a moment frozen in time, for us solidified around these seed crystals of text that were for the authors mere letters to New York papers and yet so desperately important both to themselves and to the nation that was very much yet to be born. Nothing was certain to them. To imbue them with powers of clairvoyance and hold them responsible for the outcome is, I think, a little unfair. Enough to respect them for recognizing those things of which their flickering lanterns gave them a glimpse.
....and their pet mutations that hunt for power and income.
Our federal government has a limited design. Not much money to be made there....unless it is "living and breathing."
Great, thoughtful reply!
Is there any history on the three writers deciding to use the same pen name?
I would have loved to have been at the table when they talked about the idea of the Federalist writings. From the point of them realizing that they had to respond to critics, to the decisions on who wrote about what, it must have been quite the conversation(s).
I thought "Publius" would have been a great nick when I signed up in '98 but some slime dog from the class of '97 got there first. Dang it. ;-)
I was just thinking about the USSC violating the constitution by extending laws to areas where the legislature has not approved and something occurred to me.
The Bill of Rights was not part of the Constitution when this Federalist was written. At the time, judge could not extend rights because the rights were not enumerated and hence up to the legislature to define.
We’ll be covering some of this with Brutus #12, Part 1, in a few weeks.
Thank you! And thank you again for all of your hard work at putting these threads together! I, for one, enjoy them immensely!
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