Federalist 48 – Madison

James Madison continues where he left off in Federalist 47 on the subject of the separation of powers.  As he discussed in the previous essay, Madison suggests that it is impossible for the three branches to remain completely independent of each other.  In fact Madison argues that it is absolutely necessary that some degree of intermingling of powers occur between the branches. es.

Madison begins by noting that some delineation of powers must be made; however, a precise outlining of where the authority of each branch begins and ends is impracticable.  Experience in the states shows that the legislative branches have become incredibly powerful, and had drawn all power into their “impetuous vortex.”  These state constitutions had jumped from one extreme – monarchy – to another: legislative despotism.  As Madison puts it:

The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.

This is a common theme throughout these essays, and indeed was one of the primary motivations behind the call for a constitutional convention.  Many of the Framers felt that states had become semi-despotic and overly sensitive to the majority will, and this was reflected in state constitutions that granted the respective legislative branches wide-ranging authority.  In fact, in a republic such as the United States, the legislature poses the most significant threat.

In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

Madison continues by noting that constitutional restraints placed on the executive and judiciary confine these branches and prevents either from exerting beyond its narrow confines.  Legislatures, on the other hand, are often granted such extensive powers that these bodies can more easily encroach upon individual liberties.  Practical experience over 220 years has shown that threats can emerge from all sides, but Madison is dealing with late 18th century reality in America.  Madison had witnessed too many occurrences of what he would categorize as legislative tyranny, and as such he was especially dedicated to confining legislative powers and he sought ways to curtail majority tyranny.  Keep in mind that at the beginning of the constitutional convention Madison had proposed a federal veto over all state laws.  Though the convention ultimately rejected this proposal, it indicates the extent to which Madison fretted over this problem.

Madison cites two specific state examples, and in the course of his discussion cites Thomas Jefferson’s Notes on the State of Virginia.

All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

Jefferson goes on to note that though the Virginia constitution states that the three branches of government are to remain separate and distinct, it erected no clear barrier between the several powers.  Jefferson concludes:

The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.

Madison then turns his attention to Pennsylvania where the Council of Censors declared that the “constitution had been flagrantly violated by the legislature in a variety of important instances.” Madison then provides a number of constitutional violations.

A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.

The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.

Executive powers had been usurped.

The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination.

Madison concludes by noting that the executive branch had not been wholly innocent, but that its violations of the Constitution had been less severe and/or dictated by circumstances.

Finally, Madison wraps up with these words:

The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

In the next essay, Madison details how the respective branches can guard against usurpation of power by the other branches.

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Published in: on July 5, 2011 at 2:26 pm  Comments Off on Federalist 48 – Madison  
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