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