Federalist 47 – Madison

In Federalist 47 James Madison begins a discussion of the structure of the new federal government.  Here he discusses the concept of the separation of powers, and he defends the Constitution from charges by its critics that it violated this important concept.  Madison traces the promotion of this concept to Montesquieu, and he explains in some detail what motivated the great sage.

The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard 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 this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.

Indeed Montesquieu drew heavily from the British Constitution in discussing the ideal constitution, and in the Spirit of the Laws Montesquieu developed the concept of the separation of powers.  But as Madison notes, the different branches of government were not completely distinct.

On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it 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.

As is the case with the U.S. Constitution, under the British Constitution the different branches carry out functions that one would assume ought to be carried out by other branches of government.  There is no clear line of demarcation.  Each branch has certain rights and duties that bleed over into the functions of other branches.

Madison concedes that Montesquieu believed that tyranny resulted when one person or entity controls all functions of government.  That does not mean that any mixing of powers is completely wrong.

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, or, if the power of judging be not separated from the legislative and executive powers, he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that 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. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution.

In other words, the threat of tyranny came about only when one person or body of persons had complete and total control of ALL functions of the government.  “Partial agency” is not a concern, in fact it is a necessary component of a functioning government.  Essentially what Madison is talking about are checks and balances.  Each branch has some amount of oversight and authority within the other branch, and so long as no branch completely subsumes the others need we worry about dictatorial power.

From there Madison discusses the constitutions of the several states, going through them one by one to provide examples of the mixing of powers.  Several state constitutions, he observes, contain very strict language prohibiting the mixing of powers, yet nonetheless all of them violate this strict rule one way or the other.  Each and every state constitution provides examples of the legislature having certain judicial and/or executive functions, and so on and so forth.  As Madison concludes:

In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, 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 the ensuing paper.

And said paper will be the topic of my next post.


Published in: on June 14, 2011 at 1:14 pm  Comments Off on Federalist 47 – Madison  

Philip Nolan and Flag Day

Today is Flag Day.  Edward Everett Hale, in his short story A Man Without A Country, reminds us that patriotism is a very powerful form of love.  Hale, a great nephew of Nathan Hale who died on a British scaffold and uttered the deathless  “I only regret, that I have but one life to lose for my country.”, wrote the story in the midst of the Civil War in 1863 to help inspire patriotism.

The story is a simple one.  Philip Nolan was a young artillery lieutenant in the United States Army.  He became involved in the  vague scheme of Aaron Burr to detach some territory from the  United States and form an independent nation.  All the big fish escape conviction, but Lieutenant Nolan does not.  At his courtmartial the following takes place:

One and another of the colonels and majors were tried, and, to fill out the list, little Nolan, against whom, Heaven knows, there was evidence enough,–that he was sick of the service, had been willing to be false to it, and would have obeyed any order to march any-whither with any one who would follow him had the order been signed, “By command of His Exc.A. Burr.” The courts dragged on. The big flies escaped,–rightly for all I know. Nolan was proved guilty enough, as I say; yet you and I would never have heard of him, reader, but that, when the president of the court asked him at the close whether he wished to say anything to show that he had always been faithful to the United States, he cried out, in a fit of frenzy,–

“Damn the United States! I wish I may never hear of the United States again!” (more…)

Published in: on June 14, 2011 at 5:30 am  Comments (4)  
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