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