Summary and Analysis
Section VIII: Structure of New Government:
Federalists No. 47–51 (Madison or Hamilton)
This section of five essays deals largely with the question of establishing a proper and workable system of checks and balances between the several main departments, or branches, of government.
In Chapter 47, the author declared that no political maxim was more important for liberty than that the legislative, executive, and judiciary departments should be separate and distinct. When all of these departments were in the same hands, "whether of one, a few or many, or whether hereditary, self appointed, or elective," that was the "very definition of tyranny." Critics of the Constitution contended that under it the separation of powers was vague and confusing.
Quoting Montesquieu's analysis of the British constitution, and citing the constitutions of various states, Madison argued that the three main branches of government could not be "totally separate and distinct" if they were to operate together as a whole.
Madison said that no main government branch should be directly administered by another, and that none should have an overruling influence over the others; how to obtain a proper balance between the three main departments of government was the problem. Detailing governmental operations under the constitutions of Virginia and Pennsylvania as an example, Madison concluded that the separation of powers was a "sacred maxim of free government," but the branches could not be "kept totally separate and distinct."
Madison then set out to demonstrate that the separate powers of the legislature, the executive, and the judiciary should be "so far connected and blended, as to give to each a constitutional controul over the others."
By its very nature, the legislative branch tended to gain a superiority over the two other branches. Its powers were at once broader and less susceptible to precise limits. Besides, it alone bad "access to the pockets of the people." Having cited operations under the Virginia and Pennsylvania constitutions, Madison concluded that a mere definition on paper of the three departments' constitutional limits was not a sufficient guard against encroachments leading toward a "tyrannical concentration . . . in the same hands."
Chapter 49 begins by quoting from Jefferson, who had declared that whenever any two of the three branches of government agreed that a convention should be called for amending the Constitution, "or correcting breaches of it," then such a convention should be called.
Publius agreed that this was strictly in accord with republican theory, but there were "insuperable objections" against frequent appeals to the people. For one thing, such appeals would imply defects in the government which would deprive it of "that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability." Frequent appeals would inflame public passions, for America was not a "nation of philosophers" able to discuss such questions in a cool and rational manner.
The greatest objection against frequent appeals to the people on constitutional questions was that this procedure would not maintain the government's constitutional equilibrium. The legislative branch, being the strongest, would probably be the most frequently charged with encroachments on the others. As the members of the executive and judiciary departments would be fewer in number and less known personally to the public, members of the legislative branch, having been chosen immediately by the people, would have the advantage in swinging public opinion to their point of view.
Frequent appeals to the people were not a proper or effective way of keeping the three main governmental departments within their prescribed constitutional limits.
In Chapter 50, in place of "occasional appeals to the people" about constitutional questions, some were arguing for "periodical appeals" as an adequate means of preventing and correcting infractions of the Constitution.
This method would not work either. If the time between periodical appeals were made short, there would be the same objections as against occasional appeals. If the periods were made longer, it might well be that the abuses complained of would have taken such deep root that they could not easily be removed. Certain proceedings in Pennsylvania in 1783–1784 were then cited to substantiate this point.
In Chapter 51, the only way of assuring the separation of legislative, executive, and judicial powers was to contrive such an inner structure of government that the departments might, "by their mutual relations, be the means of keeping each other in their proper places."
Each department should have a will of its own, and its members should have no "agency" in appointing members of the others. Those administering each department should have the constitutional means and "personal motives to resist encroachments of the others." Publius continued:
Ambition must be made to counteract ambition . . . It may be a reflection on human nature, that such devices should be necessary to controul 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. . . . In framing a government . . . to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and, in the next place, oblige it to controul itself.
The proposed Constitution did just that — by so dividing and arranging the several offices that "each may be a check on the other; that the private interest of every individual, may be a sentinel over the public rights."
This section is largely an elaboration on arguments made more briefly before. The only new matter introduced in this section consisted of the objections to occasional appeals to the people on constitutional questions, as advocated by Jefferson (Chapter 49), and the equal objections to periodical appeals (Chapter 50).