|JAMES MADISON: FEDERALIST 51
The Federalist Papers: Modern English Edition Two copyright 2006
Mary E Webster
# 51: Separation of Powers: Structural Checks and Balances
What method should we use, then, to maintain the necessary partition of power between the different branches as laid down in the Constitution? The only answer is: all outside provisions are inadequate. Therefore, the government must be structured, designed, so that the three constitutional branches and their relationships will have the ability to keep each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations. They may place it in a clearer light. They may also help us judge the principles and structure of the government planned by the convention.
Perfect Separation: People Appoint All Officials
To a certain extent, everyone agrees that a separation of the different powers of government is essential to the preservation of liberty. As a foundation towards that goal, it is clear that each branch should have a will of its own. Consequently, government should be designed so members of each branch have as little input as possible in the appointment of members of the others. If this principle [separation of powers] was rigorously adhered to, all appointments to the executive, legislative, and judiciary branches would have to be made from the same fountain of authority, the people, through channels having no communication with one another. Perhaps such a plan to construct the branches would be less difficult in practice than it appears in contemplation. However, difficulties and additional expense would accompany its execution. Therefore, some deviations from this principle must be allowed.
Judiciary: Specific Qualifications
In the construction of the judiciary, in particular, requiring that the people pick all members might not be very successful. First, specific qualifications in the members are essential. The most important consideration should be to select the method of choice that best secures these qualifications. Second, since judges hold permanent tenure, this would soon destroy all sense of dependence on the authority appointing them.
Executive, Judiciary Not Dependent on Legislature for Pay
Clearly, the members of each branch should be as little dependent as possible on a different branch for their compensation. Were the executive or the judicial not independent of the legislature on this point, their independence in every other area would be insignificant.
Authority, Motives to Resist Usurpations
But the best security against a gradual accumulation of powers in one branch, is giving to the administrators of each branch the necessary constitutional tools and personal motives to resist encroachments.
As in all cases, the provision for defense must be made proportional to the danger of attack. Ambition must be made to counteract ambition. The personal interests of the man must be connected with the constitutional rights of the place.
Government Reflects Human Nature; Angels Don't Need Government
It may be a reflection on human nature that such devices are necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature?
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 that 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, force it to control itself.
Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that auxiliary precautions are necessary.
Checks, Balances in All Organizations
This policy of correcting through opposite and rival interests can be traced throughout the whole system of human affairs, private as well as public. We see it, particularly, in all subordinate distributions of power, where the aim is to divide and arrange the offices in a manner that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These prudent measures are just as important in the distribution of the supreme powers of the state.
Divide Legislative; Fortify Executive
But it is not possible to give each branch an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this is to divide the legislature into different houses and make 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 allow. It may even be necessary to guard against dangerous encroachments with even further precautions. Since the weight of the legislative authority requires it should be divided, the weakness of the executive may require, on the other hand, that it should be fortified. At first view, an absolute negative on the legislature (veto) appears to be the natural defense with which the executive should be armed. But by itself it might not be completely safe or sufficient. On ordinary occasions, it might not be exerted with the requisite firmness and, on extraordinary occasions, it might be perfidiously abused. Can not a solution to this absolute negative be supplied by some qualified connection between this weaker executive branch and the weaker side of the stronger legislative branch, 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 branch?
Constitution and Separation of Powers
If these observations are based on just principles, as I persuade myself they are, and if they are applied as a criterion to the State constitutions and the federal Constitution, it will be found that, if the federal Constitution doesn't perfectly meet these principles, the State constitutions are infinitely less able to pass such a test.
U. S. Federal System Unique
Moreover, two special circumstances apply to the federal system in America, making it a unique situation.
State Governments: Additional Check on Federal Government
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government. To guard against usurpations, the government is divided into distinct and separate branches.
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, state and federal. Then the portion allotted to each is subdivided among distinct and separate branches. Hence the rights of the people are doubly protected. The different governments will control each other, at the same time that each will be controlled by itself.
Oppression from Society
Second. In a republic, society must not only be protected against the oppression of its rulers, but one part of the society must be guarded against the injustice of the other part.
Different interests necessarily exist in different classes of citizens. If a majority is united by a common interest, the rights of the minority will be insecure. There are only two methods of providing against this evil. One, create a will in the community independent of the majority—that is, of the society itself. Or two, include into society so many separate descriptions of citizens that it will be either impossible or impractical to form a majority of the people into an unjust alliance.
The first method prevails in all governments possessing a hereditary or self-appointed authority. This is, at best, but a precarious security because a power independent of the society may well espouse the unjust views of the majority, as the rightful interests of the minority, and may possibly be turned against both parties.
The second method will be exemplified in the federal republic of the United States. All authority 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.
In a free government, the security for civil rights must be the same as that for religious rights. In one case, it consists of a multiplicity of interests and, in the other, a multiplicity of sects. This is presumed to depend on the extent of the country and number of people comprehended under the same government. To all sincere and serious friends of republican government, this must recommend a proper federal system. It shows that in exact proportion as the Union's territory is formed into more States, an oppressive alliance of a majority will be facilitated. The best security for the rights of every class of citizen will be diminished. Consequently the stability and independence of some member of the government, the only other security, must be proportionally increased.
Justice is the final goal of government. It is the goal of civil society. It has always and always will be pursued until it is obtained or until liberty is lost in the pursuit.
In a society structured so that the stronger faction can easily unite and oppress the weaker, anarchy reigns as it does in nature, where the weaker individual is not protected against the violence of the stronger. Yet in nature, the uncertainty of their situation prompts even the stronger individuals to submit to a government that may protect the weak as well as themselves. In society, a similar motive will induce more powerful factions or parties to want a government that will protect all parties, the weaker as well as the more powerful.
Let's suppose the State of Rhode Island was separated from the Confederacy and left to itself. Can it be doubted that the repeated oppressions of factious majorities would cause such insecurity of rights under the popular form of government within such narrow limits that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had provided the necessity of it.
The extended republic of the United States will embrace a great variety of interests, parties, and sects. A coalition of a majority of the whole society could seldom happen on any other principles than justice and the general good. While there is less danger to a minority from the will of a majority party, there must be less pretext, also, to provide for the security of the minority by introducing into the government a will not dependent on the majority or, in other words, a will independent of the society itself.
Despite some opinions to the contrary, it is no less certain than it is important that the larger the society, provided it lies within a practical sphere, the more capable it will be of self-government. And happily for the republican cause, the practical sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.
WRITE ABOUT IT:
Why does Madison seem to fear "a gradual concentration of the several powers in the same department" of government? What is his solution? How does he argue for it?
2. How might government, as Madison claims, be "the greatest of all reflections on human nature"?
3. What solution does Madison offer to protect the minority from the will of the majority? What’s his argument?
5. Explain this statement in Madison’s argument: “If men were angels, no government would be necessary”.
What would you say was Madison's general opinion of people in government: angels? devils? something else?
6. Madison places a big emphasis on self-interest as a driving force. Why do you think he might do so? Do you think that Madison's opinion of the role of self-interest in the conduct of one's life is accurate?
8. What do you think might be most important separation of power in our society, the one that keeps the whole system from falling apart?
A) the fact that political power is divided among 3 branches of government (President, Congress, Supreme Court)
B) the fact that political power is divided between the federal (national government) and the state governments
C) the fact that who exercises political power is decided upon (directly or more often indirectly) by the people
Pick one, and explain why,