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James Madison
41
Limitation of Governmental Power
and of Majority Rule
The most accurate and helpful way to characterize our political system is to call it a constitutional democracy. The term implies a system in which the government is regulated by laws
that control and limit the exercise of political power. In a constitutional democracy people
participate in government on a limited basis. A distinction should be made between an unlimited democratic government and a constitutional democracy. In the former, the people
govern through the operation of a principle such as majority rule without legal restraint; in
the latter, majority rule is curtailed and checked through various legal devices. A constitutional system is one in which the formal authority of government is restrained. The checks
upon government in a constitutional society customarily include a division or fragmentation of authority that prevents government from controlling all sectors of human life.
Hamilton noted in Federalist 1, "It seems to have been reserved to the people of this
country, to decide by their conduct and example, the important question, whether societies
of men are really capable or not, of establishing good government from reflection and
choice, or whether they are forever destined to depend, for their political constitutions, on
accident and force." The framers of our Constitution attempted to structure the government
in such a way that it would meet the needs and aspirations of the people and at the same time
check the arbitrary exercise of political power. The doctrine of the separation of powers was
designed to prevent any one group from gaining control of the national governmental apparatus. The selections reprinted here from The Federalist, which was written between October
1787 and August 1788, outline the theory and mechanism of the separation of powers.
4
Federalist 47, 48, 51
James Madison
Federalist 47
I proceed t o examine the particular structure of this government, and the distribut i o n of this mass of power among its constituent parts.
O n e of the principal objections inculcated by the more respectable adversaries
to the constitution, is its supposed violation of the political maxim, that the legislative,
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Constitutional Government
executive, and judiciaty departments, ought to be separate and distinct. I n the
structure of the federal government, no regard, i t is said, seems to have been paid to
this essential precaution i n favor of liberty. T h e several departments of power are
disttibuted and blended i n such a manner, as at once to destroy all symmetty and
beauty of form; and to expose some of the essential parts of the edifice to the danget
of being crushed by the disproportionate weight of other parts.
N o p o l i t i c a l t t u t h is cettainly of great intrinsic value, or is stamped w i t h the aut h o r i t y of mote enlightened patrons of liberty, t h a n that o n w h i c h the objection is
founded. T h e accumulation of all powets, legislative, executive, and judiciaty, i n
the same hands, whether of one, a few, or many, and whethet heteditary, selfappointed, or elective, may justly be pronounced the very d e f i n i t i o n of tyranny.
Were the federal c o n s t i t u t i o n , therefore, really chargeable w i t h this accumulation
of power, or w i t h a mixture of powers, h a v i n g a dangerous tendency to such an accumulation, n o further arguments would be necessary to inspite a universal reprobat i o n of the system. I persuade myself, however, that i t w i l l be made apparent to
evety one, that the chatge cannot be supported, and that the m a x i m o n w h i c h i t relies has been totally misconceived and misapplied.
T h e oracle w h o is always consulted and cited o n this subject, is the celebrated
Montesquieu. I f he be n o t the author of this invaluable precept i n the science of
politics, he has the merit of at least displaying and recommending i t most effectually to the a t t e n t i o n of m a n k i n d . . . .
From . . . facts, by w h i c h Montesquieu was guided, i t may clearly be inferred,
that i n saying, "there can be no liberty, where the legislative and executive powers
are united i n the same petson, or body of magistrates"; ot " i f the power of judging, be
n o t separated f r o m the legislative and executive powers," he did n o t mean that these
departments ought to have no partial agency i n , or n o control over, the acts of each
other. His m e a n i n g . . . can amount to n o mote t h a n this, that whete the whole
power of one department is exercised by the same hands w h i c h possess the whole
power of another department, the fundamental principles of a free constitution are
subverted. . . .
I f we look i n t o the constitutions of the several states, we f i n d , that n o t w i t h standing the emphatical, and, i n some instances, the unqualified tetms i n w h i c h
this a x i o m has been laid d o w n , there is n o t a single instance i n w h i c h the sevetal
departments of power have been kept absolutely separate and distinct. . . .
T h e c o n s t i t u t i o n of Massachusetts has observed a sufficient, though less
p o i n t e d c a u t i o n , i n expressing this f u n d a m e n t a l article of liberty. I t declates,
" t h a t the legislative department shall never exercise the executive and j u d i c i a l
powers, or either of t h e m : the executive shall never exercise the legislative and
j u d i c i a l powers, or either of t h e m : the j u d i c i a l shall never exercise the legislative
and executive powers, or either of t h e m . " T h i s declaration cottesponds precisely
w i t h the doctrine of Montesquieu. . . . I t goes n o farthet t h a n to p r o h i b i t any
one of the entire departments f r o m exercising the powers of another department.
I n the very c o n s t i t u t i o n to w h i c h i t is prefixed, a p a r t i a l m i x t u r e of powers has
been a d m i t t e d . . . .
James Madison
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Federalist 48
. . . I shall undertake i n the next place to show, that unless these departments be
so far connected and blended, as to give to each a constitutional c o n t r o l over the
others, the degree of separation w h i c h the m a x i m requires, as essential to a free government, can never i n practice be duly maintained.
I t is agreed o n all sides, t h a t the powers properly belonging to one o f the departments ought n o t to be directly and completely administered by either o f the
other departments. I t is equally evident, t h a t n e i t h e r o f t h e m ought to possess,
directly ot i n d i r e c t l y , an o v e r r u l i n g influence over the others i n the administrat i o n of their respective powers. I t w i l l n o t be denied, t h a t power is of an encroaching nature, and that i t ought to be effectually restrained f r o m passing the
limits assigned to i t . A f t e r d i s c r i m i n a t i n g , therefore, i n theory, the several classes
of power, as they may i n t h e i r nature be legislative, executive, or judiciary; the
next, and most d i f f i c u l t task, is to provide some practical security for each,
against the invasion of the others. W h a t this security ought to be, is the great
problem to be solved.
W i l l i t be sufficient to mark, w i t h precision, the boundaries of these departments, i n the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? T h i s is the security w h i c h appears to
have been principally relied o n by the compilers of most A m e r i c a n constitutions.
But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more
feeble, against the more powerful members of the government. T h e legislative department is everywhere extending the sphere of its activity, and drawing all power
i n t o its impetuous vortex. . . .
I n a government where numerous and extensive pterogatives are placed i n the
hands of an hereditary monarch, the executive department is very justly regarded as
the source of danger, and watched w i t h all the jealousy w h i c h a zeal for liberty
ought to inspite. I n a democracy, where a m u l t i t u d e of people exercise i n person the
legislative functions, and are c o n t i n u a l l y exposed, by their incapacity for regular deliberation and concerted measutes, to the ambitious intrigues of their executive
magistrates, tyranny may w e l l be apprehended o n some favorable emergency, to
start up i n the same quarter. But i n a representative republic, where the executive
magistracy is carefully l i m i t e d , b o t h i n the extent and the duration of its power; and
where the legislative is exercised by an assembly, w h i c h is inspired by a supposed i n fluence over the people, w i t h an intrepid confidence i n its o w n strength; w h i c h is
sufficiently numerous to feel all the passions w h i c h actuate a m u l t i t u d e ; yet n o t so
numerous as to be incapable of pursuing the objects of its passions, by means w h i c h
reason prescribes; i t is against the enterprising a m b i t i o n of this department, that the
people ought to indulge all their jealousy and exhaust all their precautions.
T h e legislative department derives a superiority i n our governments f r o m
other circumstances. Its c o n s t i t u t i o n a l powers being at once more extensive, and
less susceptible of precise limits, i t can, w i t h the greater facility, mask, under
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Constitutional Government
complicated and indirect measures, the encroachment w h i c h i t makes o n the cootdinate departments. I t is n o t infrequently a question of real nicety i n legislative
bodies, whether the operation of a particular measure w i l l , or w i l l n o t , extend beyond the legislative sphere. O n the other side, the executive power being restrained w i t h i n a narrower compass, and being more simple i n its nature; and the
judiciary being described by landmarks, still less uncertain, projects of usurpation
by either of these departments w o u l d immediately betray and defeat themselves.
N o r is this a l l : as the legislative department alone has access to the pockets of the
people, and has i n some constitutions f u l l discretion, and i n a l l a prevailing i n f l u ence over the pecuniary rewards of those w h o f i l l the other depattments; a dependence is thus created i n the latter, w h i c h gives s t i l l greater facility to encroachm e n t of the former. . . .
Federalist 51
T o w h a t expedient t h e n shall we finally tesott, for m a i n t a i n i n g i n practice the
necessary p a r t i t i o n of power among the several departments, as laid d o w n i n the
constitution? T h e o n l y answer t h a t can be given is, that as all these exterior provisions are f o u n d to be inadequate, the defect must be supplied, by so c o n t r i v i n g
the i n t e r i o r structure of the government, as that its several constituent parts may,
by t h e i r m u t u a l relations, be the means of keeping each other i n their proper
places. . . .
I n order to lay a due f o u n d a t i o n for that separate and distinct exercise of the
different powers of government, w h i c h , to a certain extent, is admitted o n all hands
to be essential to the preservation of liberty, i t is evident that each department
should have a w i l l of its o w n ; and consequently should be so constituted, that the
members of each should have as l i t t l e agency as possible i n the appointment of the
members of the others. . . .
I t is equally evident, that the members of each department should be as little dependent as possible o n those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, n o t independent of the legislature i n this particular, their independence i n every other, would be merely n o m i n a l .
But the great security against a gradual concentration of the several powers i n
the same department, consists i n giving to those w h o administer each department,
the necessary constitutional means, and personal motives, to resist encroachments of
the others. T h e provision for defense must i n this, as i n all other cases, be made commensurate to the danger of attack. A m b i t i o n must be made to counteract ambition.
T h e interest of the man must be connected w i t h the constitutional rights of the
place. I t may be a reflection o n h u m a n nature, that such devices should be necessary
to c o n t r o l the abuses of government. But what is government itself, but the greatest
of all reflections o n h u m a n nature? I f m e n were angels, n o government would be
necessary. I f angels were to govern men, neither external nor internal controls o n
government would be necessary. I n framing a government, w h i c h is to be administeted by m e n over men, the great difficulty lies i n this: you must fitst enable the gov-
James Madison
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ernment to control the governed; and i n the next place, oblige i t t o c o n t r o l itself. A
dependence o n the people is, n o doubt, the primary c o n t r o l o n the government; but
experience has taught m a n k i n d the necessity of auxiliary precautions.
T h i s policy o f supplying by opposite and r i v a l interests, t h e defect o f better
motives, m i g h t be traced t h r o u g h t h e w h o l e system o f h u m a n affairs, private as
well as public. W e see i t particularly displayed i n all t h e subordinate distributions
of power; where the constant a i m is, t o d i v i d e and arrange t h e several offices i n
such a manner, as t h a t each may be a check o n t h e other; t h a t t h e private interest o f every i n d i v i d u a l , may be a sentinel over t h e public tights. These i n v e n tions o f prudence cannot be less requisite t o t h e d i s t r i b u t i o n o f the supteme powers o f the state.
But i t is n o t possible t o give each department an equal power o f self-defense. I n
republican government, the legislative authority necessarily predominates. T h e
remedy for this inconvenience is, t o divide t h e legislature i n t o different branches;
and t o render t h e m by different modes o f election, and different principles of act i o n , as l i t t l e connected w i t h each other, as t h e nature o f their c o m m o n functions,
and their c o m m o n dependence o n the society w i l l admit. I t may even be necessary
to guard against dangerous encroachments, by still further precautions. A s the
weight of the legislative authority requires that i t should be thus divided, the weakness of the executive may require, o n the other hand, that i t should be fortified. A n
absolute negative o n the legislature, appears, at first view, t o be the natural defense
w i t h w h i c h the executive magistrate should be armed. But perhaps i t would be n e i ther altogether safe, nor alone sufficient. O n ordinary occasions, i t m i g h t n o t be exerted w i t h the requisite firmness; and o n extraordinary occasions, i t m i g h t be perfidiously abused. May n o t this defect o f a n absolute negative be supplied by some
qualified connection between this weaker department, and the weaker branch o f
the stronger department, by w h i c h the latter may be led t o support the constitutional rights o f the former, w i t h o u t being too m u c h detached f r o m the rights o f its
o w n department?
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Interpreting the Constitution
The preceding selections have offered contrasting views on the framing, nature, and
purpose of the Constitution. As background, John Locke's political philosophy expressed in his Second Treatise, Of Civil Government (1690) supported the political beliefs of many eighteenth-century Americans in government as a social contract between
rulers and ruled to protect the natural rights of citizens to life, liberty, and, very importantly, property.
To John Roche the Constitution was a practical political document reflecting compromises among state delegations with contrasting political and economic interests among
and advocates of strong national power and proponents of states' rights. Charles Beard
saw the Constitution as a reflection of the interests of property owners and creditors who