JAMES MADISON: FEDERALIST 51
The Federalist Papers: Modern English Edition Two
Mary E Webster
copyright 2006
# 51: Separation of Powers: Structural Checks and Balances
What method should we use, then, to maintain the necessary partition of power between the different branches as laid
down in the Constitution? The only answer is: all outside provisions are inadequate. Therefore, the government must be
structured, designed, so that the three constitutional branches and their relationships will have the ability to keep each other
in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general
observations. They may place it in a clearer light. They may also help us judge the principles and structure of the government
planned by the convention.
Perfect Separation: People Appoint All Officials
To a certain extent, everyone agrees that a separation of the different powers of government is essential to the
preservation of liberty. As a foundation towards that goal, it is clear that each branch should have a will of its own.
Consequently, government should be designed so members of each branch have as little input as possible in the appointment
of members of the others. If this principle [separation of powers] was rigorously adhered to, all appointments to the
executive, legislative, and judiciary branches would have to be made from the same fountain of authority, the people, through
channels having no communication with one another. Perhaps such a plan to construct the branches would be less difficult in
practice than it appears in contemplation. However, difficulties and additional expense would accompany its execution.
Therefore, some deviations from this principle must be allowed.
Judiciary: Specific Qualifications
In the construction of the judiciary, in particular, requiring that the people pick all members might not be very successful.
First, specific qualifications in the members are essential. The most important consideration should be to select the method of
choice that best secures these qualifications. Second, since judges hold permanent tenure, this would soon destroy all sense of
dependence on the authority appointing them.
Executive, Judiciary Not Dependent on Legislature for Pay
Clearly, the members of each branch should be as little dependent as possible on a different branch for their
compensation. Were the executive or the judicial not independent of the legislature on this point, their independence in every
other area would be insignificant.
Authority, Motives to Resist Usurpations
But the best security against a gradual accumulation of powers in one branch, is giving to the administrators of each
branch the necessary constitutional tools and personal motives to resist encroachments.
As in all cases, the provision for defense must be made proportional to the danger of attack. Ambition must be made to
counteract ambition. The personal interests of the man must be connected with the constitutional rights of the place.
Government Reflects Human Nature; Angels Don't Need Government
It may be a reflection on human nature that such devices are 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 that 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, force it to control itself.
Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that
auxiliary precautions are necessary.
Checks, Balances in All Organizations
This policy of correcting through opposite and rival interests can be traced throughout the whole system of human affairs,
private as well as public. We see it, particularly, in all subordinate distributions of power, where the aim is to divide and
arrange the offices in a manner that each may be a check on the other—that the private interest of every individual may be a
sentinel over the public rights. These prudent measures are just as important in the distribution of the supreme powers of the
state.
Divide Legislative; Fortify Executive
But it is not possible to give each branch an equal power of self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this is to divide the legislature into different houses and make 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 allow. It may even be necessary to guard against dangerous
encroachments with even further precautions. Since the weight of the legislative authority requires it should be divided, the
weakness of the executive may require, on the other hand, that it should be fortified. At first view, an absolute negative on the
legislature (veto) appears to be the natural defense with which the executive should be armed. But by itself it might not be
completely safe or sufficient. On ordinary occasions, it might not be exerted with the requisite firmness and, on extraordinary
occasions, it might be perfidiously abused. Can not a solution to this absolute negative be supplied by some qualified
connection between this weaker executive branch and the weaker side of the stronger legislative branch, 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
branch?
Constitution and Separation of Powers
If these observations are based on just principles, as I persuade myself they are, and if they are applied as a criterion to
the State constitutions and the federal Constitution, it will be found that, if the federal Constitution doesn't perfectly meet
these principles, the State constitutions are infinitely less able to pass such a test.
U. S. Federal System Unique
Moreover, two special circumstances apply to the federal system in America, making it a unique situation.
State Governments: Additional Check on Federal Government
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single
government. To guard against usurpations, the government is divided into distinct and separate branches.
In the compound republic of America, the power surrendered by the people is first divided between two distinct
governments, state and federal. Then the portion allotted to each is subdivided among distinct and separate branches. Hence
the rights of the people are doubly protected. The different governments will control each other, at the same time that each
will be controlled by itself.
Oppression from Society
Second. In a republic, society must not only be protected against the oppression of its rulers, but one part of the society
must be guarded against the injustice of the other part.
Different interests necessarily exist in different classes of citizens. If a majority is united by a common interest, the rights
of the minority will be insecure. There are only two methods of providing against this evil. One, create a will in the community
independent of the majority—that is, of the society itself. Or two, include into society so many separate descriptions of citizens
that it will be either impossible or impractical to form a majority of the people into an unjust alliance.
The first method prevails in all governments possessing a hereditary or self-appointed authority. This is, at best, but a
precarious security because a power independent of the society may well espouse the unjust views of the majority, as the
rightful interests of the minority, and may possibly be turned against both parties.
The second method will be exemplified in the federal republic of the United States. All authority 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. In one case, it consists of a
multiplicity of interests and, in the other, a multiplicity of sects. This is presumed to depend on the extent of the country and
number of people comprehended under the same government. To all sincere and serious friends of republican government,
this must recommend a proper federal system. It shows that in exact proportion as the Union's territory is formed into more
States, an oppressive alliance of a majority will be facilitated. The best security for the rights of every class of citizen will be
diminished. Consequently the stability and independence of some member of the government, the only other security, must be
proportionally increased.
Justice is the final goal of government. It is the goal of civil society. It has always and always will be pursued until it is
obtained or until liberty is lost in the pursuit.
In a society structured so that the stronger faction can easily unite and oppress the weaker, anarchy reigns as it does
in nature, where the weaker individual is not protected against the violence of the stronger. Yet in nature, the uncertainty of
their situation prompts even the stronger individuals to submit to a government that may protect the weak as well as
themselves. In society, a similar motive will induce more powerful factions or parties to want a government that will protect
all parties, the weaker as well as the more powerful.
Let's suppose the State of Rhode Island was separated from the Confederacy and left to itself. Can it be doubted that
the repeated oppressions of factious majorities would cause such insecurity of rights under the popular form of government
within such narrow limits that some power altogether independent of the people would soon be called for by the voice of the
very factions whose misrule had provided the necessity of it.
The extended republic of the United States will embrace a great variety of interests, parties, and sects. A coalition of a
majority of the whole society could seldom happen on any other principles than justice and the general good. While there is
less danger to a minority from the will of a majority party, there must be less pretext, also, to provide for the security of the
minority by introducing into the government a will not dependent on the majority or, in other words, a will independent of the
society itself.
Despite some opinions to the contrary, it is no less certain than it is important that the larger the society, provided it
lies within a practical sphere, the more capable it will be of self-government. And happily for the republican cause, the practical
sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.
--Publius
WRITE ABOUT IT:
1. Why does Madison seem to fear "a gradual concentration of the several powers in the same department" of
government? What is his solution? How does he argue for it?
2. How might government, as Madison claims, be "the greatest of all reflections on human nature"?
3. What solution does Madison offer to protect the minority from the will of the majority? What’s his argument?
5. Explain this statement in Madison’s argument: “If men were angels, no government would be necessary”.
What would you say was Madison's general opinion of people in government: angels? devils? something else?
6. Madison places a big emphasis on self-interest as a driving forceDo you think that Madison's opinion of the role of selfinterest in the conduct of one's life is accurate?
7. Speculate: Which political philosophers, from our recent activity, might have inspired or influenced Madison in #51?
Explain how.
8. Do you believe the controls against the abuse of power by a single government department have been effective? (consider:
Executive Branch, IRS, CIA, Federal Courts, Congressional committees and special interest group donors?)