FReeper Book Club: The Debate over the Constitution, Federalist #51

In his last essay in this series, Madison takes the federal government apart, much like a watch, and in a general sense examines what makes the individual parts reinforce republican principles.

² To what expedient, then, shall we finally resort for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution?

³ The only answer that can be given is that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may by their mutual relations be the means of keeping each other in their proper places.

⁴ Without presuming to undertake a full development of this important idea, I will hazard a few general observations which may perhaps place it in a clearer light and enable us to form a more correct judgment of the principles and structure of the government planned by the Convention.

⁵ In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

⁶ Were this principle rigorously adhered to, it would require that all the appointments for the supreme Executive, Legislative and Judiciary Magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.

⁷ Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear.

⁸ Some difficulties, however, and some additional expense would attend the execution of it.

¹⁰ In the constitution of the Judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.

¹¹ It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.

¹² Were the Executive Magistrate or the judges not independent of the Legislature in this particular, their independence in every other would be merely nominal.

¹³ But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.

¹⁴ The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.

¹⁶ The interest of the man must be connected with the constitutional rights of the place.

¹⁷ It may be a reflection on human nature that such devices should be necessary to control the abuses of government.

¹⁸ But what is government itself but the greatest of all reflections on human nature?

²⁰ If angels were to govern men, neither external nor internal controls on government would be necessary.

²¹ In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.

²² A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.

²³ This policy of supplying by opposite and rival interests the defect of better motives might be traced through the whole system of human affairs, private as well as public.

²⁴ We see it particularly displayed in all the subordinate distributions of power where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other, that the private interest of every individual may be a sentinel over the public rights.

²⁵ These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

²⁶ But it is not possible to give to each department an equal power of self defense.

²⁷ In republican government, the legislative authority necessarily predominates.

²⁸ The remedy for this inconvenience is to divide the Legislature into different branches, and to render them by different modes of election and different principles of action as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

²⁹ It may even be necessary to guard against dangerous encroachments by still further precautions.

³⁰ As the weight of the legislative authority requires that it should be thus divided, the weakness of the Executive may require on the other hand that it should be fortified.

³¹ An absolute negative on the Legislature appears at first view to be the natural defense with which the Executive Magistrate should be armed.

³³ On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused.

³⁴ May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department by which the latter may be led to support the constitutional rights of the former without being too much detached from the rights of its own department?

³⁵ If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several state constitutions and to the federal Constitution, it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

³⁶ There are, moreover, two considerations particularly applicable to the federal system of America which place that system in a very interesting point of view.

³⁷ First: In a single republic, all the power surrendered by the people is submitted to the administration of a single government, and the usurpations are guarded against by a division of the government into distinct and separate departments.

³⁸ In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.

⁴⁰ The different governments will control each other at the same time that each will be controlled by itself.

⁴¹ Second: It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.

⁴³ If a majority be united by a common interest, the rights of the minority will be insecure.

⁴⁴ There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is of the society itself; the other by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable if not impracticable.

⁴⁵ The first method prevails in all governments possessing an hereditary or self-appointed authority.

⁴⁶ This, at best, is but a precarious security because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party and may possibly be turned against both parties.

⁴⁷ The second method will be exemplified in the federal republic of the United States.

⁴⁸ [While] all authority in it will be derived from, and dependent on, the society, the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals or of the minority will be in little danger from interested combinations of the majority.

⁴⁹ In a free government the security for civil rights must be the same as that for religious rights.

⁵⁰ It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.

⁵¹ The degree of security in both cases will depend on the number of interests and sects, and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

⁵² This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated; the best security under the republican forms for the rights of every class of citizens will be diminished, and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.

⁵⁵ It ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit.

⁵⁶ 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.

⁵⁷ It can be little doubted that if the state of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.

⁵⁸ In the extended republic of the United States and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; [while] there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former by introducing into the government a will not dependent on the latter, or in other words a will independent of the society itself.

⁵⁹ It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self government.

⁶⁰ And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.

This closes two sets of Madison essays, the culmination of the analytical plan detailed at the opening of Federalist #41 some twenty days before, through which he intended to reveal the inner workings of the proposed Constitution. That plan consisted of two criteria against which the design of the proposed federal government might be measured.

^41-3 The first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states.

^41-4 The second, to the particular structure of the government and the distribution of this power among its several branches.

That occupied #47 through #51. The first three of the latter demonstrated a need for the separation of powers between the several branches of government, using the theoretical model of Montesquieu and the practical examples of England, Virginia and Pennsylvania. The topic now is how Madison intends to provide for a separation of powers between the branches of government in precisely the right measure, both to address their independence and, as well, create enough interdependence so that they might provide checks and balances against one another. That, he states, cannot be found through an exterior provision (3) such as Pennsylvania’s Board of Censors. It must, therefore, be built into the very structure of the government itself.

Populating the branches of government directly from the body of citizens with no communication between the former might serve to guarantee independence (6), but has practical difficulties including expense (8) and certain special requirements inherent in the population of the Judiciary in particular (10) – a legal education for Supreme Court justices, for example. Isolating the branches this way is therefore not an option. So the recourse is an appeal to that most basic and dependable of human emotions: jealousy.

This seems a bit cynical coming from Madison who is, after all, a passionate advocate for the most soaring ideals in the human spirit. Surely he isn’t serious? Oh, but he is.

²⁰ If angels were to govern men, neither external nor internal controls on government would be necessary.

It is both a dark and a thoroughly justified view of citizen and government. Madison is not designing for angels, but for men, and worse, for the sort of men who will be the politicians, the sort of men who are not suspicious of power but fond of it, and whose suspicions are directed solely toward encroachment upon their possession of it. Madison echoes Machiavelli here: the motivation need not be virtuous to be supremely useful.

It may be useful not simply across the three main branches of government, but within a single one. Madison repeats his conviction that it is the Legislative branch that is most likely to accrue power, both through its closeness to the people – it is, according to the proposed Constitution, the only one to be popularly elected – and, as well, the fact that the very year-to-year existence of standing armies will depend on its approval. Here Madison appears to be reasoning from the English experience of the previous century, where Parliament successively deposed and executed a King, won a series of wars, set up one of its own members, Cromwell, as effective sovereign, relented at his death, brought back first the son of the late King, and then, in the Glorious Revolution of 1688, replaced his successor with yet another royal figure in William of Orange. Precisely one hundred years later, no one, in America at least, was in any doubt of where the power in the British government truly lay.

There was, of course, no sovereign to be deposed in the United States, Washington having made his own views in the matter emphatically clear, but there was to be a Legislative branch whose purview was similar to Parliament and whose ambitions might, in the country’s best interest, better be directed into internecine warfare.

The difference in the original Constitution between the elected House and the nominated Senate was therefore no accident, nor was the difference in terms of office between the two. Because of this difference Madison did not anticipate it to be easy for a political figure to transition from one to the other, House to Senate, junior to senior, mirroring the Commons and Lords of Parliament. That has remained largely the case despite the inception of the popular election of Senators which culminated in the 17th Amendment in 1913.

Madison deemed the Legislative to be sufficiently split by this into separate power blocs. Again, reasoning on the English model, he suggested that the power of the weaker Executive be enhanced (30), but not by a complete veto on the actions of the Legislative or even such a partial one as to encourage the Executive aligning itself with one House of Congress or another (34).

But the principles of the separation of powers and checks and balances between them applied outside the federal government to the state governments, in which they were only partially expressed (35). That made the United States a “compound republic” (38) in which the interests of the two levels of government served to act in the same way. But Madison was not yet done applying this fundamental political principle. It applied to the very source of all political power, the people themselves.

⁴¹ ...It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.

One may address this by creating a governing will that is independent of any majority, “as in all governments possessing an hereditary or self-appointed authority” (45). Or one may encourage a diversity of interests, “comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable if not impracticable.” (44)

It is a fascinating model of society on which the entirety of American political theory now turns, a model incorporating a multiplicity of classes identified by more than the dreary simplistic shorthand of Oppressor and Oppressed, more than the Marxist model of different tiers of economic advantage, more than the thoroughly muddled neo-Marxist model of an indefinite array of class signifiers such as race or sex or behavioral preference. It is, in fact, a model that incorporates all of these and more, that emphasizes that political power flows from the individual who simultaneously might be a member of many different classes and whose own interests must therefore be more or less unique.

To illustrate the workings of this model, the reader learns that the security for civil rights (49) will consist in the multiplicity of interests (50), and that this dynamic works better in larger populations, best in one that encompasses the entire country (51). It is one more argument in favor of federalism. There are, in fact, economies of scale.

⁶⁰ And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.

Nor is this model an artifact of late Enlightenment idealism, but a recognition of the complexity that is very much evident in contemporary American politics. One need only consult a breakdown of electoral statistics to encounter the bewildering array of analysis encompassing age, sex, economic class, region, ethnicity, religion, and enough others to keep a battery of statistical analysts employed from election to election.

It is in this sense that Madison’s political model devolves onto the individual citizen, and it is through this model that he hoped the country would avoid assembling a majority that would align itself against a minority. That model is nothing more than the separation of powers, and checks and balances, applied all the way down to the individual citizen through the medium of multiple class memberships. It is a model of considerable sophistication: strength through diversity, stability through contention, and it works at all levels from citizen to governments and back down again.

Madison has finished his eleven essay analysis of the proposed Constitution with a flourish and a glimpse of the deep political philosophy that informed the structure of the government it describes. Interests will inevitably vary, and instead of forcing them into a single Hegelian state spirit, it behooves a government of free men to recognize those differences and to build a government around them. And that is proving more difficult than nearly anyone thought at the outset.

Is Madison’s analysis on target, or are there other ways of parsing the design of a government divided by departments?

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.

Simply one of the greatest ideas ever put to paper.

Which Madison admittedly violates with this idea,

In the constitution of the Judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.

Gah! It, "the primary consideration ought to be to select that mode of choice which best secures these qualifications" is even less true today, in the age of the internet and other media. We know our representatives much better than ever before. We are fully able to select our USSC justices. Also, I think we would all agree that judicial appointments for life have proven to be inadequate in separating the Judicial branch from the Executive branch. Of course Madison, et. al. thought that the temperament of the executive branch might be more administrative than it is today.

27 In republican government, the legislative authority necessarily predominates.

This is not the only time Madison or other Federalists and Anti-Federalists state this. They all thought that it was the nature of the Legislative branch to be supreme. This is why he had the Judicial branch appointed by the other popularly elected branch, the Executive branch, i.e. to maintain a check on the Legislative branch.

38 In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.

You know, I don’t know if he meant exactly this but one can think of the National Government as two strong parts, the House and the President, and two weaker branches, the Senate and the Supreme Court. I’m thinking more and more that the Judicial branch is too weak due to the fact that it’s appointment is from the Executive branch.

for the sort of men who will be the politicians, the sort of men who are not suspicious of power but fond of it

Hamilton, Are you listening? We’re talking about you!

Legislative branch that is most likely to accrue power, both through its closeness to the people – it is, according to the proposed Constitution, the only one to be popularly elected

What about the electoral college?

be easy for a political figure to transition from one to the other, House to Senate…. That has remained largely the case despite the inception of the popular election of Senators which culminated in the 17th Amendment in 1913.

Hmmm. I can’t quite go there with you. Granted, Governors have a better shot at becoming Senators but just like all Senators dream of being President, all House members dream of being Senators. (almost) The ambition is there.

he suggested that the power of the weaker Executive be enhanced (30), but not by a complete veto on the actions of the Legislative or even such a partial one as to encourage the Executive aligning itself with one House of Congress or another (34).

You should post the personal notes from the convention some time. They deliberated on veto power and their feelings about tangential issues are revealing.

political power flows from the individual who simultaneously might be a member of many different classes and whose own interests must therefore be more or less unique.

It is the desire of the Socialists and the Marxists to take the human uniqueness and quantify it, classify it and objectify it thus making it subordinate to their reason. God bless them.

Executive aligning itself with one House of Congress or another.

Some day you should do a post on the only logical flaw in the constitution.

Madison, brilliant as he is, continuously confounds me in trying to figure out exactly what ground he is standing on at any given point in time.

I think he is always consistent with one exception, when he arguing the case for the Senate. The State control of the Senate was not his ideal and he opposed it. He largely ignores it when he’s talking about the theory of the constitution. I do agree with you that there is a remarkable sameness between the people in all three branches of government.

Discussion Topic

Is Madison’s analysis on target, or are there other ways of parsing the design of a government divided by departments?

You know my thoughts on this. The progressives, in their desire to pass sweeping laws without regard for their consequence, have delegated their authority to the Executive branch through the regulatory process, aided by a judiciary that is made of people selected due to their deference to the Executive branch. There are many remedies. One is in the "Contract with America, i.e. all regulations costing more than $100mm must be approved by congress.* The $100mm is arbitrary of course and by it’s arbitrary nature gives away the importance of that number being $0. This is my favorite as it provides for accountability and clarity. This does not answer your question though as it is simply a return to the original intent. One could amend the constitution with such a rule but that is icky.

A second remedy is electing USSC judges to sixteen year terms, every two years, as selected by an electoral college. Popularly electing judges is being argued in Iowa by none other than Sandra Day O'Connor over their gay marriage ruling. Lot’s of good articles can be found through Google. That would make the judicial branch stronger as it would have more popular legitimacy and make its separation from the other two branches much cleaner.

A third remedy is amending the constitution such that the states can remove a Senator at any time for any reason. This would once again make the Senators beholden to the state governments yet retain their popular election. Most states would be reluctant to remove a popularly elected Senator until he’s on the outs with the people. The downside is that the churn in the Senate would be against Madison’s principle that the Senate’s opinion should be formed over a long time while the House’s should be more current. I’ve grown not to like this idea for that reason.

* It was quite the pleasant surprise to see that idea in there. I didn’t even know it was being considered.

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