Federalist 51 – Madison

Federalist 51 is such a well-known essay that it would be possible to underestimate its importance.  Make no mistake about it, this essay represents the essence of Madison’s political thought.  It is a companion piece of sorts to Federalist 10 (which I covered here and here), and they are connected thematically.

Madison has been discussing for several essays in this series the means by which to keep the federal government within the confines of its constitutional powers.  He has rejected Jefferson’s idea to appeal to the populace in order to settle constitutional disputes.  With this essay he proposes the solution: checks and balances.

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.

To maintain this distinction in the foundations of each branch’s power, it would be ideal for each of the branches to have no say in the appointments to the other branches.  This is not totally practicable, as is the case with the judiciary.  Yet the branches should remain as fully independent from one another as possible.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

The members of the judiciary are not dependent on the legislative branch for their living, thus helping to ensure its independence.

What follows is perhaps the most famous passage in American political history.  It’s easy to get caught up in the fine rhetoric, but it’s much more than simply a stirring rhetorical passage.  This is the foundation of Madison’s political philosophy, and in many ways embodies the principles that went into construction the constitution.

But the great security against a gradual concentration of the 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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control 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. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

What is astounding about this passage, and about this essay in general, is that James Madison takes traditional thinking and turns it on its head.  Political vice is turned into a virtue.

Madison is a realist.  He views human nature and accepts it for what it is.  He doesn’t think that government can fundamentally alter human nature, and of course that puts him at odds with the likes of Rousseau and his acolytes in France (and perhaps America, including those with the initials TJ, but I’ll leave that for another time).  Rather than developing a constitutional framework that attempted to change reality, Madison and his fellow framers devised a constitution that adapted itself to human nature.  So, the conflict that is a natural part of human interaction becomes the backbone of our form of government.

Here, too, is a dismissal of the romantic view of democracy held by men like Jefferson.  Democrats like Jefferson had a lot of confidence  in the people to govern, as evidenced in the proposal discussed in Federalist 49.  Madison does not share this optimistic appraisal.  It’s not enough to blindly trust the people to manage constitutional squabbles.  The governed are just as susceptible to the foibles of human nature as the governors.  So the political system should be so arranged so that no one group gets to dictate to the rest of the country.  Therefore there are several layers of checks and balances within our constitutional system to protect against majority tyranny.  The system of checks and balances between the branches is one such check, and another, as we will see, is the concept of an extended federal republic consisting of  many sovereign states.

I wouldn’t go so far as to call Madison a pessimist; rather, I would call him a realist.  He doesn’t exactly have a rosy outlook on society, but he doesn’t go so far as some Protestants in calling humans naturally sinful.  I am tempted to call this the Catholic view of mankind: original sin exists, but it does not mean man is incapable of overcoming his sinful inclinations.  But rather than engaging in fanciful utopian speculations about devising an illusory political system that ignores the realities of man’s imperfect nature, Madison prefers to construct an imperfect system that does its best to accommodate human nature.  I would further add that such thinking places him slightly outside the Enlightenment tradition.  Rather than pinpointing the thinkers that inspired Madison, maybe it’s time we realized that what we’re reading here is a fairly unique political philosophy of its own.

There is much more.  Madison continues his discussion of the constitutional mechanisms that guard against encroachments of power.

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.

This statement in and of itself is significant.  This certainly reflects the thinking prevalent at the time.  This is also buttressed by the debate at the constitutional convention where the delegates almost took it as a given that the legislature would and should be the dominant branch.  In fact many of the framers were primarily concerned with the legislative branch being too powerful, and subsequently sought to strengthen the executive branch.

The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

In other words, a qualified veto ensures that the two branches are somewhat reliant on each other, though without destroying their respective sense of independence.

Madison shifts the focus of this paper to a discussion of federalism.  If checks and balances are the internal mechanism by which to constrain the government, then federalism is an external mechanism that provides an extra layer of security.

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Again, this is a fairly radical new concept.  What we have here are two types of checks and balances.  First we have an institutional mechanism to keep the respective branches of the government secure against one another, and then we have this extra-constitutional concept of federalism to ensure that the people are secured against the combined machinations of the federal government.  If one branch obtains unchecked power, at least the federalist system will keep the federal government from growing too strong.  Weaken this federalist system, and there goes that check on the government’s power.

Oh how prescient Madison would be proven to be.

In the last, rather lengthy paragraph, Madison expands upon theme from Federalist 10.  As he did in that essay, he uses a two-pronged hypothetical to make his point.

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.

This is very much like the discussion of factions in Federalist 10.  There he spoke of the option between stifling their creation and controlling their effects.  Here he is concerned with preventing the spread of majority tyranny, though in essence these are really the same concern.  As he did in Federalist 10, he rejects the more extreme-sounding solution.

The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.

We have created a republic through the constitution, so this solution is not palatable or possible.  That leaves us with the second option.

Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.  In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

Again, direct echoes of Federalist 10.

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

All this concern about factions, and the ways to curtail their formation, is yet more proof of Madison’s less than cheerful appraisal of human nature.  He is not a wild-eyed romantic who views the people as the truest repository of freedom.  In essence, Madison proposes a government and a society so bifurcated (and trifurcated for that matter) that it is becomes almost impossible for any one faction or group to become d0minant.

Madison’s fear of majority tyranny is even more apparent in the next part of this paragraph:

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 under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

And then it is but a short trip from such a state to outright despotism.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.

This sounds very much like it could have been written by Plato.  In the Republic Plato describes how societies devolve, moving slowly from an ideal form of government to incrementally worse forms.  Democracy eventually devolves into despotism as, due to the chaos that comes from democratic governments, the masses turn to a “savior” to restore order.  The extended federal republic of the United States is the best way to guard against this possibility.

In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.

It had been a long-standing principle that republics were best fitted for small territories.  As both Madison and Hamilton has written in earlier papers, on the contrary, larger republics of extended spheres are greater guarantors of peace and harmony.  The framers thus upended centuries of political thinking with their creation.

So much for a lack of originality.