Federalist Papers Nos. 47–51 form a cohesive sequence (all by James Madison) that systematically defends the Constitution’s design for separating and balancing the legislative, executive, and judicial powers.
These essays respond to Anti-Federalist fears that the proposed government mixed powers too freely and risked concentrating authority in one branch—especially the legislature.
Drawing on Montesquieu and the experience of the state constitutions, Madison shows that absolute, rigid separation is neither possible nor desirable.
Some overlapping functions and mutual controls are essential so that each department can check the others.
- No. 47 clarifies what separation of powers actually requires and demonstrates that the state governments themselves already blended powers.
- No. 48 argues that mere parchment barriers are insufficient; the departments must be given practical means of self-defense.
- Nos. 49–50 reject frequent appeals to the people or periodic conventions as workable remedies for encroachments.
- No. 51 supplies the classic solution: structure the government so that “ambition must be made to counteract ambition,” with internal checks and balances reinforced by the further security of federalism (the division of power between national and state governments).
Together these five papers supply the theoretical core of the American system of separated powers and institutional checks—the framework that remains central to constitutional interpretation and civic education.
Federalist 47: “Separation of Powers” Defined and Examined
THE ACCUMULATION of the legislative, executive, and judicial powers 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.
No political truth is certainly of greater intrinsic value – or is stamped with the authority of more enlightened patrons of liberty – than the doctrine of separation of powers.
This political maxim holds that the legislative, executive, and judicial departments ought to be separate and distinct.
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.
Separation of Powers as Described by Montesquieu
This invaluable precept in the science of politics was principally recommended to the attention of mankind by the Montesquieu, who is celebrated as the oracle on the subject.
Just as the didactic writers on epic poetry considered the immortal bard Homer 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 did Montesquieu view the Constitution of England as the standard – or to use his own expression – “the mirror of political liberty.”
From the several characteristic principles of that particular system, he deduced several elementary truths, of which the separation of powers is one. To be sure not to mistake his meaning, I refer to the British Constitution, the source from which the maxim was drawn.
The Constitution of Great Britain Intermingles Powers
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.
The king – who is the sole executive magistrate – forms an integral part of the legislative authority.
The king alone has the prerogative of making treaties with foreign sovereigns, which when made have the force of legislative acts, with certain limitations.
All the members of the judiciary are appointed by this magistrate, who can remove them on the address of the two Houses of Parliament, and can form – when the king pleases to consult them – one of the magistrate’s constitutional councils.
In the legislative department, one of its branches is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases.
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.
Separation of Powers Requires Only that One Department Does Not Wholly Control Another, Not that Departments Be Wholly Separate
When Montesquieu wrote there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, and that the power of judging needs be separated from the legislative and executive powers, he did not mean that the three departments ought to have no partial agency in – or no control over – the acts of each other.
As shown by his words and illustrated by the example in his eye, his meaning amounts to no more than this: 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.
In the case of Great Britain, a true violation of separation of powers would exist if the king (as the sole executive magistrate) also possessed the complete legislative power, or the supreme administration of justice.
A violation also would occur if the entire legislative body possessed either the supreme judicial authority or the supreme executive authority. These, however, are not among the vices of that constitution.
The king (in whom the whole executive power resides) cannot of himself make a law, although he can put a negative on every law the legislature passes.
The king also cannot administer justice in person, although he has the power of appointment of those who do administer it.
The judges can exercise no executive prerogative, although though they are shoots from the executive stock.
Nor do judges perform any legislative function, although they may offer advice to the legislative councils.
The entire legislature can perform no judicial act, although by the joint act of two of its branches a judge may be removed from office, and one of its branches (the House of Lords) is possessed of the judicial power of last resort, as with our Supreme Court.
The entire legislature, again, can exercise no executive prerogative, although 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.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.
“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.”
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.”
These brief passages (to which I have added emphasis) sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Separation of Powers Applied to the Constitution
Some opposed to the Constitution argued no regard was paid to this essential precaution in favor of liberty in the structure of the Federal government, since the several departments of power are so distributed and blended as 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.
Were the federal Constitution really chargeable with such an accumulation of power – or with a mixture of powers having a dangerous tendency toward such an accumulation – no further arguments would be necessary to inspire a universal reprobation of the system.
The charge is unsupported, though, and the maxim on which it relies has been totally misconceived and misapplied.
Separation of Powers in State Constitutions
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
New Hampshire
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, with my emphasis, “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.”
Her constitution accordingly mixes these departments in several respects.
The senate – a branch of the legislative department – is also a judicial tribunal for the trial of impeachments.
The president – who is the head of the executive department – is the presiding member also of the senate, and has an equal vote in all cases as well as a casting vote in the case of a tie.
The executive head is elected every year by the legislative department, and his council is every year chosen by and from the members of the same department.
Several of the officers of the State are also appointed by the legislature. And the members of the judicial department are appointed by the executive department.
Massachusetts
The constitution of Massachusetts has observed a sufficient, though less pointed caution, in expressing this fundamental article of liberty.
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.”
This declaration corresponds precisely with the doctrine of Montesquieu, and is not violated by the plan of the Convention on any single point.
The Massachusetts constitution goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.
The same constitution admits a partial mixture of powers.
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 department and the judiciary.
The members of the judicial department are appointed by the executive department, and removable by the same authority on the address of the two legislative branches.
Lastly, a number of governmental officers are annually appointed by the legislative department.
Since the power to appoint to offices – particularly executive offices – is in its nature an executive function, the compilers of the Massachusetts constitution have in this respect violated the rule established by themselves.
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
Rhode Island and Connecticut
I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution, before the principle under examination had even become an object of political attention.
New York
The constitution of New York contains no declaration on this subject, but it appears very clearly to have been framed with an eye to the danger of improperly blending the different departments.
Nevertheless, it gives the executive magistrate a partial control over the legislative department; moreover, it gives a like control to the judicial department, and even blends the executive and judicial departments in the exercise of this control.
In its council of appointment, members of the legislative are associated with the executive authority in the appointment of both executive and judicial officers, and its court for the trial of impeachments and correction of errors consists of one branch of the legislature and the principal members of the judiciary.
New Jersey
The constitution of New Jersey has blended the different powers of government more than any of the preceding.
The governor, who is the executive magistrate, is appointed by the legislature.
He is chancellor and surrogate of the State, a member of the supreme court of appeals, and president (with a deciding vote) of one of the legislative branches.
The same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals.
The members of the judicial department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other.
Pennsylvania
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.
In conjunction with an executive council, the president appoints the members of the judiciary, and forms a court of impeachment for trial of all judicial and executive officers.
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 is to be referred to the same department.
The members of the executive council are made ex officio justices of peace throughout the State.
Delaware
In Delaware, the chief executive magistrate is annually elected by the legislative department.
The speakers of the two legislative branches are vice-presidents in the executive department.
The supreme court of appeals is composed of the executive chief and six others, with three appointed by each of the two legislative branches.
The executive is joined with the legislative department in the appointment of the other judges.
The members of the executive council and one branch of the legislature are ex officio justices of the peace. (Indeed, throughout the States it appears members of the legislature may at the same time be justices of the peace.)
The principal officers of the executive department are appointed by the legislature, and one of its branches forms a court of impeachments. All officers may be removed on address of the legislature.
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. Notwithstanding this declaration, her constitution gives to the legislative department he power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
Maryland
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.
Notwithstanding this declaration, her constitution gives to the legislative department the power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
Virginia
The language of Virginia is still more pointed on this subject.
Her constitution declares “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.”
Besides this express exception with respect to the members of the county courts, we also find the chief magistrate and executive council are appointed by the legislature, which also fills all the offices of the executive and judicial, and exercises the executive prerogative of pardon.
North Carolina
The constitution of North Carolina declares “the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other.”
Yet in that State the legislative department appoints not only the chief executive chief, but all of the executive offices, as well as those of the judiciary.
South Carolina
Under South Carolina’s constitution, the legislative department selects the executive magistrate, and appoints officers in the executive department all the way down to captains in the State army and navy.
The legislature also appoints members of the judicial department, including even justices of the peace and sheriffs.
Georgia
The constitution of Georgia declares “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.”
Yet we find the executive department is filled by appointments of the legislature, which also exercises the executive prerogative of pardon.
Even justices of the peace are appointed by the legislature.
While Many State Constitutions Declare in Favor of Separation of Powers, in Practice Powers Are Often Mixed
In citing these cases in which the legislative, executive, and judicial departments have not been kept totally separate and distinct, I should not be regarded as an advocate for the particular organizations of the several State governments.
Although the State constitutions cite many excellent principles, they seemed to have been framed by inexperienced hands moving hastily.
In some instances the fundamental principle under consideration has been violated by too great a mixture – even an actual consolidation – of the different powers.
And in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.
These facts disprove the charge that the proposed Constitution violates the sacred maxim of free government based on the separation of powers.
The charge 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.
This interesting subject will be resumed in Federalist 48.
Madison
Federalist 48: In a Republic, the Legislative Branch Is the Most Likely to Usurp Power
I EXAMINED THE THEORETICAL DIFFERENCES between the legislative, executive and judicial classes of power in Federalist 47, and showed that a wise adherence to the separation of powers doctrine actually does not require the respective departments be wholly unconnected with each other.
In fact, the maintenance of a free government requires the separate powers be so far connected and blended as to give to each a constitutional control over the others. (See Federalist 51 and following.)
The Constitutional Convention unanimously concluded that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.
Nor should one possess direct or indirect influence to overrule the others in the administration of their respective powers.
But how were we to provide some practical security for each against the invasion of the others?
The question posed a most difficult problem to solve.
Power Usually Seeks More Power
Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained.
Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power?
The compilers of most of the State constitutions chose this method, but experience assures us their solution was greatly overrated, and that a more adequate defense is indispensably necessary to protect the more feeble against the more powerful members of the government.
To be sure, the founders of our State governments never for a moment turned their eyes from the danger to liberty created by the overgrown and all-grasping prerogative of a hereditary magistrate, supported and fortified by a hereditary branch of the legislature.
But in their zeal against executive usurpations, the State founders never recalled the danger from legislative usurpations.
Assembling all power in the same hands always leads to the same tyranny, whether perpetrated by the right of birth, the legislature, the executive, or the judiciary.
Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained. Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power?
Executive Tyranny Is More Likely in Monarchies and Democracies
In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy a zeal for liberty ought to inspire.
Likewise in a democracy, tyranny may well be apprehended – on some favorable emergency – to start up in the executive quarter.
The ambitious intrigues of executive magistrates can interfere with a multitude of individuals exercising legislative functions because they lack capacity for regular deliberation and concerted measures.
The Main Engine of Tyranny in a Republic Is the Legislative Authority
In a republic, the People ought to indulge all their jealousy and exhaust all their precautions against the enterprising ambitions of the legislative department.
The legislative power is exercised by an assembly, whose members can feel mutual intrepid confidence in their own strength, usually inspired by a supposed influence over the People.
A representative assembly is generally sufficiently numerous to feel all the passions that can actuate a multitude, yet not so numerous as to be incapable of rationally pursuing the objects of its passions.
The Legislative Vortex
A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex.
This is so because its superiority is derived from many sources.
The legislature’s constitutional powers are both more extensive and less susceptible of precise limits than those of the executive or judiciary.
Therefore, it can more easily mask – under complicated and indirect measures – the encroachments it makes on the coordinate departments.
Nor is this all: the legislative department alone has access to the pockets of the People.
In addition, in every State constitution, the legislative power has a prevailing influence – and in some a full discretion – over the pecuniary rewards of those who fill the other departments.
The executive and judiciary are thus dependent on the legislature, facilitating its encroachments.
On the other side, executive power is restrained within a narrower compass.
By its nature executive power is simpler than legislative power, and its duration is a further limit.
Judicial power is limited by landmarks even more easily visible.
Projects of usurpation by either of these departments would immediately betray and defeat themselves.
A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex. This is so because its superiority is derived from many sources.
Experience verifies the truth of my observations.
Were it necessary to advance particular proofs, they might be multiplied without end.
I would certainly find a witness in every citizen who has taken note of the course of our public administrations.
I might collect vouchers in abundance from the records and archives of every State in the union.
But a more concise and equally satisfactory evidence exists in the example of two States, attested to by unassailable authorities.
The first example is from Virginia, whose constitution expressly declares the three great departments ought not to be intermixed.
The second example, from Pennsylvania, highlights that legislative tyranny knows no bounds.
Virginia’s Example of Legislative Tyranny Explained by Jefferson
I consider Virginia first because the report is from the pen of Jefferson, who was the Governor of that great Commonwealth, giving him a unique perspective into its legislative maneuvers.
To convey fully the ideas his experience impressed upon him, I must quote at length a passage from his very interesting Notes on the State of Virginia, which explain fully the example and include my italics:
“All the powers of a government – legislative, executive, and judicial – concentrated the same hands is precisely the definition of despotic government. That these powers will be exercised by a plurality of hands rather than a single hand is no alleviation. Several hundred despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice.
“It little avails us that our despots are chosen by ourselves, for we did not fight for a government of elective despotism. (Emphasis added.) We fought for a government founded on free principles, with its powers so divided and balanced among several bodies of magistracy that no one could transcend their legal limits without being effectually checked and restrained by the others.
“For this reason, the convention which founded the government for Virginia declared the legislative, executive, and judicial departments should be separate and distinct, so that no person could exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. (Emphasis added.)
“The judiciary and executive were left dependent on the legislature for their subsistence in office, and in some cases for their continuance in it. If the legislature were to assume executive and judicial powers, no opposition would likely be made – nor if made, be effectual – because their proceedings could be put into the form of Acts of the Assembly, rendering them obligatory on the other branches.
“Accordingly, the legislative body has in many instances decided rights in controversies which should have been left to a judicial controversy, and habitually directed the executive during the whole time of their session.” Emphasis added.
Governor Jefferson’s observations confirm our own regarding the inefficacy of written admonitions alone to counterbalance the power of faction.
Pennsylvania’s Legislative Tyranny
The second proof of the danger of legislative despotism comes from Pennsylvania, and is recorded by its Council of Censors, which was created by their constitution.
It was assembled in the years 1783 and 1784, and entrusted “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.”
The council compared the legislative and executive proceedings with the constitutional powers of these departments, and concluded the constitution had been flagrantly violated by the legislature.
For instance, the State constitution’s chief precaution against improper acts of legislature was a requirement that all bills of a public nature be previously printed for the consideration of the People, yet without any apparent necessity the legislature passed many laws without printing them beforehand.
Powers also were assumed which had not been delegated by the constitution, and the constitutional right to trial by jury violated.
Executive powers were usurped.
Judicial salaries – which their constitution expressly required to be fixed – were occasionally varied; and cases belonging to the judicial department frequently were drawn within legislative cognizance and determination.
While some of these actions may be imputable to peculiar circumstances connected with the Revolutionary War, most were the spontaneous outgrowths of an ill-constituted government.
Tyranny Hides More Easily under Many Hands
It also appears that Pennsylvania’s executive department was not innocent of frequent breaches of their constitution (although most were either produced by the necessities of the War or upon the recommendations of the Congress or the commander-in-chief).
In most of the other instances, the constitutional violations conformed to the declared or known sentiments of the legislative department.
It should be noted Pennsylvania’s executive department differs from those of other States because it is composed a number of members, rather than one. In this respect, it has more affinity to a legislative assembly or an executive council.
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 are more freely hazarded than where the executive department is administered by a single hand, or by a few hands.
The People Cannot Solely Rely on Written Prohibitions to Restrain Tyranny
From these observations I must reaffirm that mere the demarcation on parchment of the constitutional limits of the several departments is insufficient guard against the encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
Madison
Federalist 49: A Convention of States Is Far More Likely to Exacerbate Constitutional Errors than Correct Them
Jefferson’s Proposal to Rectify Constitutional Errors and Abuses by Appealing to the People Is Brilliant in Theory, but Defective in Practice
Jefferson’s Notes on the State of Virginia appends the draft he prepared in 1783 for a convention to establish a constitution for that Commonwealth.
Like everything from the same pen, the plan marks a turn of thinking that is at once original, comprehensive, and accurate.
It is even more worthy of attention as it displays a fervent attachment to representative government and an equally enlightened view of the dangerous propensities against which it ought to be guarded.
His ultimate palladium to the weaker departments of power against the invasions of the stronger is this: “Whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose.”
Under the representative theory of government, he reasons, the People are the only legitimate source of power, and the several branches of government derive and hold their power from the constitutional charter approved by them.
Since the several departments are perfectly coordinate by the terms of their common commission, none of them can pretend to an exclusive or superior right of settling the boundaries between their respective powers.
Returning to the original authority of the People is thus necessary not only to enlarge, diminish, or remodel the powers of the government, but also when any one of the departments commits encroachments on the chartered authorities of the others.
How else are the encroachments of the stronger to be prevented – or the wrongs of the weaker to be redressed – without an appeal to the People themselves – the original grantors of the commissions – who alone can declare its true meaning, and enforce its observance?
There is great force in this reasoning.
A constitutional road to the decision of the People ought to be marked out and kept open for use on certain great and extraordinary occasions.
But there are fatal objections against returning to the People in all cases in order to keep the several departments of power within their constitutional limits.
The reason of man – like man himself – is timid and cautious when left alone. The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
Jefferson’s Plan Would Allow Two Departments to Conspire Successfully Against the Third
In the first place, the provision will not apply where two of the departments combine against the third.
The legislative authority possesses many means of operating on the motives of the other departments. (See Federalist 48.)
Should it be able to gain the interest of only one of the other two – or even one third of its members – the remaining department could not utilize this remedial provision.
Any Appeal to the People Implies a Constitutional Defect, and Frequent Appeals Will Undermine Public Faith in and Support for the Federal Government
The reason of man – like man himself – is timid and cautious when left alone.
The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion.
When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
All governments ultimately depend upon opinion.
Every appeal to the People would imply some defect in the Federal government, and frequent appeals would greatly deprive it of that veneration which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability.
In a nation of philosophers, we could disregard this consideration.
A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason.
But a nation of philosophers is as unlikely as Plato’s philosophical race of kings.
In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
Frequent Referrals to the People Would Stir Passions, Embolden Factions, and Threaten Public Tranquility
A still more serious objection against frequently referring constitutional questions to the whole society is the danger to public tranquility arising from public passions too strongly stirred.
The Constitution for the United States – like the several State constitutions – was created in circumstances which repressed those passions most unfriendly to order and concord.
A universal resentment and indignation against the old governments produced a universal ardor for new and opposite forms.
An enthusiastic confidence of the People in their patriotic leaders stifled the diversity of opinions ordinarily expressed on great national questions.
The spirit of party was unconnected to the changes to be made and the abuses to be reformed, and thus did not mingle its leaven in the preparation.
The virtue and intelligence of the People of America triumphed.
No equivalent security against these dangers is likely to exist in future situations where revisions to this ingenious agreement are proposed.
A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings. In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
Rather than Hindering a Majority Faction, Referrals to the People Would Probably Aid It
The greatest objection to referring any constitutional question to the People is that it would fail to restore the constitutional equilibrium of the government.
In representative governments, the legislature – in our case the Congress – tends to aggrandize the powers of the executive and judicial departments, as I explained in Federalist 48.
Appeals to the People would therefore usually be made by the executive and judicial departments.
Would either enjoy equal advantages with the legislature on the issue referred?
Let us view their different situations.
Congress Has More Influence than the President or the Courts
The members of the executive and judicial departments are few in number and personally known only to a small part of the People.
Judicial members – by the mode and permanency of their appointment – are too far removed from the People to share much in their prepossessions.
Executive officers are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular.
On the other hand, the members of legislative department are numerous.
They are distributed and dwell among the People at large. Their connections of blood, friendship, and acquaintance embrace a great proportion of the most influential part of the society.
The nature of their public trust creates a personal influence among the People, who generally view them as the immediate and confidential guardians of their rights and liberties.
With such advantages, the executive or judiciary would have less than an equal chance for a favorable outcome.
A Convention Would Likely Consist of Those Whose Errors Were Being Reviewed
Aside from being able to plead their cause most successfully with the People, members of Congress would themselves probably be constituted the judges.
The same influence which had gained them an election into the Congress would gain them a seat in the convention.
This would be the case with many representatives and senators, and certainly with those leading characters on whom everything depends in such bodies.
Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged.
They would thus be parties to the very question to be decided by them.
Even in Cases of Clear Constitutional Error, Parties and Factions Would Infect Any Convention
It might sometimes happen that appeals would be made under circumstances less adverse to the executive and judicial departments.
The usurpations of the Congress might be so flagrant and so sudden as to admit of no specious coloring.
A strong party in the Congress might side with the other branches.
The executive power might be in the hands of a popular favorite of the People.
In such a posture of things, the public might be less swayed by arguments in favor of the dominant congressional party.
Even so, we can never expect that any constitutional convention would turn on the true merits of the question.
It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself.
It would be connected with persons of distinguished character and extensive influence in the community.
It would be pronounced by the very persons who were the agents or opponents of the measures under review.
The passions of the People would sit in judgment, not its reason.
The government ought to be controlled by the reason of the People, not its passions.
For its part, the government ought to temper the passions of the People.
Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged. They would thus be parties to the very question to be decided by them.
In Federalist 48, I explained why mere declarations in written constitutions are insufficient to restrain the several departments within their legal rights.
I explained why occasional appeals to the People would be neither proper nor effectual.
As for the other provisions of Mr. Jefferson’s draft constitution, some are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.
Madison
Federalist 50: Periodical Constitutional Conventions Will Prove as Ineffectual as Occasional Ones
Revision of the Constitution at Fixed Periods Is Unwise
I DEMONSTRATED in Federalist 49 that a constitutional convention would not likely rectify a faction’s current transgression of the Constitution.
Now I consider whether periodical appeals to the People are the proper and adequate means of preventing and correcting constitutional infractions.
I will confine myself to the utility of a convention assembled to enforce the Constitution by keeping the several departments of power within their due bounds.
I also observed in Federalist 49 that the unique circumstances culminating with the issuance of the Constitution for the United States would not present themselves again.
I described the pervasive and inclusive spirit of equanimity which permeated the Constitutional Convention.
The spirit and leaven of faction were absent from those proceedings, thus permitting construction of the thoughtful and detailed plan of self-government for ourselves and our posterity.
Appeals to the People at fixed periods will be nearly as ineffectual as occasional appeals for preventing and correcting constitutional infractions.
If the periods are separated by short intervals, the measures under review will be of recent date.
All the circumstances tending to vitiate and pervert the results of occasional revisions will apply with equal force.
If the periods of fixed review be distant from each other, the measures to be reviewed and rectified will range from the most recent to the most distant.
Review of the most recent measures will suffer from the same infirmities afflicting appeals to the People as the occasion may demand.
Review of older measures will be more dispassionate, but this advantage is counterbalanced by disadvantages.
A Faction Will Not Be Dissuaded from Its Goal by Fear of Future Punishment
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives.
Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?
In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied.
And in the last place, abuses which were not complete would still be of long standing, have taken deep root, and not easily be extirpated.
The Pennsylvania Example Proves that an Oppressive Faction or Party Likely Will Dominate Any Convention
As I observed in Federalist 48, the scheme of revising a constitution in order to correct recent breaches was actually tried in Pennsylvania, where its Council of Censors met in 1783 and 1784 to inquire “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other.”
This important and novel experiment in politics merits very particular attention as applied to the case under consideration, since it involves some facts which completely illustrate our reasoning.
First, some of its most active members had also been active and leading characters in the State’s pre-existing parties.
Second, the same active and leading members of the council had been active and influential members of the legislative and executive branches within the period to be reviewed, and some patrons or opponents of the very measures to be tested against their constitution.
In the seven years preceding the convention, two of its members had been vice-presidents of the State, and several others members of the executive council.
Within the same period, one had been speaker of the legislative assembly, and a number of others distinguished members of that body.
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives. Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?
Third, every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations.
The council was split into two fixed and violent parties for its duration, a fact they themselves acknowledged and lamented.
The face of their proceedings exhibits an equally satisfactory proof. In all questions – however unimportant in themselves or unconnected with each other – the same names stand invariably contrasted in opposite columns.
Without impugning either party or its individual members, every unbiased observer unfortunately must infer that passion – not reason – presided over their decisions.
When individuals exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them.
When they are governed by a common passion, their opinions – if they can be so called – will be the same.
Fourth, the decisions of this body in several instances appeared to misconstrue the limits prescribed for the legislative and executive departments, rather than reducing and limiting them within their constitutional boundaries.
Fifth, whether rightly or erroneously formed, the decisions of the council on constitutional questions had little effect on changing legislative practices, and in one instance the dominant faction in the legislature simply rejected the constructions of the council, thereby solidifying its control.
In summary, by its researches, this censorial body proved the existence of the disease, and by its example, the inefficacy of its remedy.
Despite Their Flaws, Opposing Parties Are Preferable to Conformity
These conclusions are not weakened by the assertion that Pennsylvania had long been violently heated and distracted by the rage of party.
Is it to be presumed the same or some other State will be free from parties at some future interval?
Such an event ought not to be presumed or desired.
An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
Excluding Interested Individuals from a Constitutional Convention Would Lead to the Selection of Their Agents, Who Would Know Less than Their Principals
Nor would difficulties encountered by assemblies elected by the People to revise the preceding administration of the government be obviated by the precaution of excluding all persons who should have been concerned with the government within the given period.
The important task would then devolve to persons with inferior capacities who were no more qualified.
While they might not have been personally concerned in the administration – and therefore not immediately agents in the measures to be examined – they would have been involved in the parties connected with these measures, and been elected under their auspices.
Madison or Hamilton
Federalist 51: The Structure of the Federal Government Will Furnish Proper Checks and Balances Between the Different Departments
The Structure of the Constitution Incorporates Internal Controls on the Federal Government
TO WHAT EXPEDIENT shall we finally resort for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution?
Since all exterior methods are inadequate, the only answer can be to contrive the interior structure of the government in a way that its several constituent parts keep each other in their proper places.
The Legislative, Executive and Judicial Departments Each Must Have a Will of Its Own
A few general observations will enable us to form a more correct judgment of the principles and structure of the government planned by the Convention.
It is admitted to a certain extent by all that a separation of powers is the essential foundation to preserving liberty. In laying this foundation for the separate and distinct exercise of the different powers of government, it is evident each department should have a will of its own.
Therefore, each department should have as little agency as possible in the appointment of the members of the others.
It is equally evident the members of each department should be as little dependent as possible on the other departments for the salaries annexed to their offices.
Were the executive or judiciary dependent on the Congress in this particular, in every other particular their independence would be merely nominal.
A Complete Separation of Powers Is Not Required in All Instances
Rigorous adherence to the principle of separation of powers would require all appointments to the magistracies of the executive, legislative, and judicial branches be drawn from the same fountain of authority – the People – through channels having no communication whatsoever with one another.
Such a plan would be less difficult in practice than it appears in contemplation.
Some deviations from the principle are warranted, however, due to particular circumstances or the expense attending execution of a complete separation of powers.
The Judiciary Would Not Benefit from a Complete Separation of Powers
It would be inexpedient to insist rigorously on a complete separation of powers in constituting the judicial department.
Since it is essential that members of the judiciary be particularly qualified, the process of appointment must be one that best secures these qualifications.
For instance, judicial appointments under the Constitution are made by the executive with the consent of the Senate, which is one branch of the legislative authority.
This is justified because it will best secure qualified appointees, whose permanent tenure upon approval will destroy all sense of dependence on the authorities conferring nomination and approval.
The greatest security against a gradual concentration of 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.
Each Department Must Have the Means to Resist Encroachments from the Others
The greatest security against a gradual concentration of 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.
As in all other cases, the provision for defense must be commensurate to the danger of attack.
Ambition must counteract ambition.
The interest of individual officials must be connected with the constitutional rights of the place.
The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions. Therefore, we must remedy the lack of better motives by supplying opposite and rival interests.
Human Nature Requires Built-in Defense Mechanisms to Encroachers
That such devices are necessary to control the abuses of government is a reflection on human nature.
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, no controls on government would be necessary.
But in framing a government to be administered by men over men, we must first enable the government to control the governed, and then oblige the government to control itself.
The People Cannot Rely Upon Their Powers Alone
The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions.
Therefore, we must remedy the lack of better motives by supplying opposite and rival interests.
This remedy can be witnessed in the whole system of human affairs, both public and private.
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.
The private interest of every individual can be a sentinel over the public rights.
These inventions of prudence are no less requisite in the distribution of the supreme powers of the state.
If men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary. But in framing a government to be administered by men over men, we must first enable the government to control the governed, and then oblige the government to control itself.
The Method of Defense Varies with the Power to be Controlled
It is impossible to give to each department an equal power of self-defense.
In republican government, the legislative authority necessarily predominates.
To remedy this, we must divide the legislature into different branches.
The use of different modes of election and different principles of action renders the two legislative branches as little connected with each other as the nature of their common functions and their common dependence on the People will admit.
It also is necessary to guard against dangerous encroachments by further precautions.
Just as the extent and weight of the legislative authority requires that it should be divided into two chambers, the weakness of the executive department requires it be fortified.
Even though the power of an absolute negative on legislative measures initially appears to be the executive’s natural and best defense – it may be neither altogether safe nor alone sufficient.
On ordinary occasions an absolute veto might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused.
The absence of an absolute veto power can be rectified by some qualified connection of the weaker executive department and the Senate, which is the weaker branch of the legislative department.
The Senate may support the constitutional rights of the executive, without being too much detached from the rights of its own department.
The Constitution Improves upon State Models Because It Divides Power Multiple Times
If the Constitution is compared with the several State constitutions in regard to separation of powers, the State constitutions will be found infinitely less able to bear such a test.
Two considerations distinguish the Constitution for the United States from all others.
First, in a single republic, all the power surrendered by the People is submitted to the administration of a single government, which is divided into distinct and separate departments to guard against the usurpations of the others.
In the compound republic of America, the power surrendered by the People is initially divided between two distinct governments – State and Federal – and then the portion allotted to each government is further subdivided among distinct and separate departments.
Hence a double security arises to the rights of the People.
The different governments will control each other, and at the same time each will be controlled by itself.
Rigorous adherence to the principle of separation of powers would require all appointments to the magistracies of the executive, legislative, and judicial branches be drawn from the same fountain of authority – the People – through channels having no communication whatsoever with one another.
Second, a republic must guard the society not only from the oppression of its rulers, but also one part of society against the injustice of the other.
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 but two precautions against this evil.
The first is creating a will in the community independent of the majority, that is, a will independent of society itself.
The second is to comprehend in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole either very improbable or impracticable.
The first method – creating a will in the community independent of society itself – prevails in all governments that possess a hereditary or self-appointed authority.
This is at best a precarious security, since a power independent of the society may just as likely to espouse the unjust views of the major party as the rightful interests of the minor party.
Such an independent will could also be turned against both parties.
The second method – a society composed of as many separate descriptions of citizens as to render unlikely an unjust combination of a majority – will be exemplified in the Federal republic of the United States.
The rights of individuals or of the minority will be in little danger from interested combinations of the majority because our society itself will be broken into many parts, interests, and classes of citizens.
The security for civil rights in a free government must be the same as the security for religious rights.
In the case of civil rights it consists in the multiplicity of interests. In the case of religious rights it consists in the multiplicity of sects.
The degree of security in both cases will depend on the number of interests and sects, which in turn depends on the extent of territory and the number of people comprehended under the same government.
The rights of every class of citizens will be diminished exactly in proportion to extent oppressive majorities may control the territory encompassed within separate confederacies or combinations of States.
The only remaining security against an oppressive majority is proportionately to increase the stability and independence of another member of the government.
Justice is the end of government.
It is the end of civil society.
It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.
In a society where the stronger faction can readily unite and oppress the weaker, anarchy must reign, as in a state of nature, where the weaker is not secured against the violence of the stronger.
But even in nature, the stronger individuals are prompted – from uncertainty of their own condition – to submit to a government which can protect the weak as well as themselves.
In human society, the more powerful factions or parties gradually will be induced, by a like motive, to wish for a government which will protect all parties, encompassing the weaker as well as the more powerful.
The security for civil rights in a free government must be the same as the security for religious rights. In the case of civil rights it consists in the multiplicity of interests. In the case of religious rights it consists in the multiplicity of sects.
The State of Rhode Island gives example of this. If that State were separated from the union and left to itself, the repeated oppressions of factious majorities against the rights of minor factions would soon result in a demand for some power altogether independent of the People. The voice for such action would most likely emanate from the very factions whose misrule had proved the necessity of it.
In contrast, the extended republic of the United States embraces a great variety of interests, parties, and sects, making a coalition of a majority of the whole society unlikely except on principles of justice and the general good.
There being less danger to a minor party from the will of a major party, there also is less pretext to provide for the security of the minority by introducing into the government a will not dependent on the majority.
It is both important and certain that the larger the society is – provided it lie within a practical sphere – the more duly capable it will be of self-government.
And happily for the republican cause, that practicable sphere may be carried to a very great extent indeed, by a judicious modification and mixture of the federal principle.
Madison or Hamilton