FReeper Book Club: The Debate over the Constitution, Federalist #47

Starting with the British government, the earnest professor of history looks at the state governments to find how their designs differ from the plan of the Convention and the proposed Constitution.

² Having reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government and the distribution of this mass of power among its constituent parts.

³ One of the principal objections inculcated by the more respectable adversaries to the Constitution is its supposed violation of the political maxim that the Legislative, Executive and Judiciary departments ought to be separate and distinct.

⁴ In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.

⁵ The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

⁶ No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded.

⁷ The accumulation of all powers – legislative, executive and judiciary – in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

⁸ Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

⁹ I persuade myself, however, that it will be made apparent to every one that the charge cannot be supported and that the maxim on which it relies has been totally misconceived and misapplied.

¹⁰ In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.

¹¹ The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.

¹² If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.

¹³ Let us endeavor, in the first place, to ascertain his meaning on this point.

¹⁴ The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry.

¹⁵ 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.

¹⁶ 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.

¹⁷ 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.

¹⁸ The executive magistrate forms an integral part of the legislative authority.

¹⁹ He alone has the prerogative of making treaties with foreign sovereigns, which when made, have under certain limitations the force of legislative acts.

²⁰ 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.

²¹ 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.

²² 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.

²³ 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.

²⁴ 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.

²⁵ 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.

²⁷ The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it.

²⁸ The judges can exercise no executive prerogative, though they are shoots from the executive stock, nor any legislative function, though they may be advised with by the legislative councils.

²⁹ The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort.

³⁰ The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

³¹ The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.

³² “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”

³³ Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”

³⁴ Some of these reasons are more fully explained in other passages, but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

³⁵ If we look into the constitutions of the several states, we find that, notwithstanding the [emphatic] and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.

³⁶ New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.”

³⁸ The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments.

³⁹ The President, who is the head of the executive department, is the presiding member also of the Senate, and besides an equal vote in all cases, has a casting vote in case of a tie.

⁴⁰ The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department.

⁴² And the members of the judiciary department are appointed by the executive department.

⁴³ The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this fundamental article of liberty.

⁴⁴ It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.”

⁴⁵ This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the Convention.

⁴⁶ It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.

⁴⁷ In the very constitution to which it is prefixed, a partial mixture of powers has been admitted.

⁴⁸ The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments.

⁴⁹ The members of the judiciary department, again, are [appointed] by the executive department and removable by the same authority on the address of the two legislative branches.

⁵⁰ Lastly, a number of the officers of government are annually appointed by the legislative department.

⁵¹ As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have, in this last point at least, violated the rule established by themselves.

⁵² I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution and even before the principle under examination had become an object of political attention.

⁵³ The constitution of New York contains no declaration on this subject but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments.

⁵⁴ It gives, nevertheless, to the executive magistrate a partial control over the legislative department, and, what is more, gives a like control to the judiciary department, and even blends the executive and judiciary departments in the exercise of this control.

⁵⁵ In its council of appointment, members of the legislative are associated with the executive authority; in the appointment of officers, both executive and judiciary.

⁵⁶ And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department.

⁵⁷ The constitution of New Jersey has blended the different powers of government more than any of the preceding.

⁵⁸ The governor, who is the executive magistrate, is appointed by the legislature, is chancellor and ordinary, or surrogate of the state, is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches.

⁵⁹ The same legislative branch acts again as executive council of the governor and with him constitutes the Court of Appeals.

⁶⁰ The members of the judiciary department are appointed by the legislative department and removable by one branch of it on the impeachment of the other.

⁶¹ According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates.

⁶² In conjunction with an executive council, he appoints the members of the judiciary department and forms a court of impeachment for trial of all officers, judiciary as well as executive.

⁶³ The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature, and the executive power of pardoning in certain cases to be referred to the same department.

⁶⁴ The members of the executive council are made ex-officio justices of peace throughout the state.

⁶⁵ In Delaware, the chief executive magistrate is annually elected by the legislative department.

⁶⁶ The speakers of the two legislative branches are vice presidents in the executive department.

⁶⁷ The executive chief, with six others, appointed three by each of the legislative branches, constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges.

⁶⁸ Throughout the states, it appears that the members of the legislature may at the same time be justices of the peace; in this state, the members of one branch of it are ex-officio justices of the peace, as are also the members of the executive council.

⁶⁹ The principal officers of the executive department are appointed by the legislative, and one branch of the latter forms a court of impeachments.

⁷¹ Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other.

⁷² Her constitution, notwithstanding, makes the executive magistrate [appointed] by the legislative department, and the members of the judiciary by the executive department.

⁷⁴ Her constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.”

⁷⁵ Yet we find not only this express exception with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are [appointed] by the legislature, that two members of the latter are triennially displaced at the pleasure of the legislature, and that all the principal offices, both executive and judiciary, are filled by the same department.

⁷⁶ The executive prerogative of pardon, also, is in one case vested in the legislative department.

⁷⁷ The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers at the same time to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.

⁷⁸ In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.

⁷⁹ It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs, and the appointment of officers in the executive department down to captains in the army and navy of the state.

⁸⁰ In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature, and the executive prerogative of pardon to be finally exercised by the same authority.

⁸² 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.

⁸³ 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.

⁸⁴ 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.

⁸⁵ 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 is a straightforward piece in which Madison answers the critics who have stated that the powers of the three branches of government are too intermingled. His approach is twofold: that such arrangements are both sound in theory and in current practice in the real world.

First, the theory. Madison was, of all of the Founders, perhaps the one most influenced by Charles de Secondat, Baron de Montesquieu, who was the late Enlightenment’s leading political theorist. Madison was by no means the only one; both Federalists such as Hamilton and anti-Federalists such as Brutus, Cato and deWitt made reference to Montesquieu in papers already published at the time of this essay.

¹¹ The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.

The work most commonly cited is Montesquieu's Spirit of the Laws, published in French in 1748 and in English in 1750. He was, in the opinion of the 19th Century British historian and politician Thomas Macaulay, the heir to Machiavelli in the field of political analysis, and indeed there are stylistic similarities between the Spirit of the Laws and such Machiavellian classics as the Discourses on Livy.

It was Montesquieu who classified the French government of his day into two classes of power, the sovereign and the administrative, and the latter he broke down into the now familiar legislative, executive and judicial branches that form the structure of American government. These, he stated, worked best when their functions were isolated. The critics of the proposed Constitution took that to mean that the more isolated, the better. Not so, says Madison.

²³ 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.

Thus the two principles of American constitutional structure are both seen in Montesquieu: the principle of the separation of powers, and the principle of checks and balances, and it is clear to Madison that the latter will not be possible without modifying the former to include at least a partial crossover of power. This, he states, was observed by Montesquieu himself in his study of the paragon of constitutional government of the early 18th Century, that of Great Britain (15).

¹⁷ 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.

But they cannot be too intermingled. Madison quotes Montesquieu again in a statement that must resonate with modern critics of the tendency of the American Executive Branch to attempt to govern through bureaucratic fiat.

³² “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”

Then comes a quote which must resonate with modern critics of the American Supreme Court’s tendency toward judicial activism.

³³ Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”

It is too much to claim that Madison foresaw any of these developments at the time, but the fact that he quotes Montesquieu on their dangers proves that he was aware of the possibility. How best to guard against it? By limited crossover within separated branches of government. It was no particular innovation, in fact, for instances of this compromise abounded within existing state governments.

The balance of the piece is an enumeration of this, state by state. Madison cites the governments of New Hampshire (36), Massachusetts (43), New York (53), New Jersey (57), Pennsylvania (61), Delaware (65), Maryland (71), Virginia (73) – whose constitution was written by Thomas Jefferson, George Mason and significantly, by Madison himself – North Carolina (77), South Carolina (78) and Georgia (80). Rhode Island and Connecticut are passed over because they were “formed prior to the Revolution and even before the principle under examination had become an object of political attention.” (52)

Madison does not want this essay misconstrued as advocacy for any of the particular state constitutions (82). These, he says, were excellent first efforts, but “carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.” (83) The latter is a bit tongue in cheek – the modern reader might need to be reminded, but his contemporaries knew perfectly well that he was referring to himself. He will expand on that dry self-criticism in the next essay and be echoed by Jefferson in the succeeding essay, wherein it will become clear that the writing of the Virginia Constitution offered a vital contribution to that of the new federal one.

Are any of the plans of state government better than the Constitution? If so, how and why?

"The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent? To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are. "

Abel Upshur Secretary of the Navy 1841-43

If I worked for a month I could not say it any better than that!

A BTT for the morning crowd. The further we get into this project the more it astounds me not that balance and compromise were constituents of the Constitutional structure - that much was obvious from the outset - but that the specific balances and compromises chosen have functioned as well as they have for so long. Nearly everyone involved on both sides of the debate appears to realize that the government must change, must accrete power, and the challenge becomes more one of forming that progress than preventing it altogether. That isn't surprising inasmuch as the very least the most conservative anti-Federalists expected was a major amendment of the Articles of Confederation.

It is not, therefore, the Constitution that is a "living document," it is the government it controls, and just as with cell growth, where the control mechanisms for growth are corrupted natural growth can become cancer. It isn't the happiest of metaphors but it'll do for now.

Our Constitution was, and is a radical departure from the existing forms of foreign governments. However, it was not a radical departure from the American experience.

From 1607 onward, the distant British colonies were forced to organize themselves into largely self governing entities for the sake of defense against French and Indian depredations and for commerce. Left to govern themselves during the English Civil War in a near Lochean state of nature, colonial and municipal governments developed varying modes of legislative, executive and judicial departments.

Upon revolt from Britain the states were more than ready to formally adopt freedom loving and government limiting constitutions. As Madison outlines, their structures were remarkably similar.

Our Constitution was therefore not a flash in the pan, nor a passing whimsy. What Montesquieu theorized was already well underway across the Atlantic.

No, our Constitution was and is a uniquely AMERICAN form of government, developed over 180 years, rooted in Natural Law and suitable only for a virtuous people jealous to defend their God given rights.

Interesting comment by you, and I like the anology.

But there is one thing about government cells that our standard cells do not have: government cells do not die. They survive and grow, and multiply. Government cells do not go through stages of life (infancy, adoescence, old age and termination), and they never are lean; they bloat with age.

Their life cycle is the citizens' fault. We should be weeding out the old growth by putting a sunset on every bureau and every office within that bureau. The same with every tax, tax raise, or regulation.

Our distancing ourselves from constitutional principles is this nation's biggest problem; and the reason is obvious: George Mason hit the nail on the head with this section of his "Virginia Declaration of Rights:"

XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles."

It is time for our citizens to recoginize the importance of that last clause.

Left to govern themselves during the English Civil War in a near Lochean state of nature, colonial and municipal governments developed varying modes of legislative, executive and judicial departments.

Interesting observation. In his collection of short stories titled Mosses from an Old Manse, Nathaniel Hawthorne wrote a story titled "Endicott and the Red Cross" which takes place during this period of upheaval in Salem, Massachusetts.

While I stopped listening to Neal Boortz some time ago, he got one thing right. The NEA/government schools represent a threat greater than Islam. It will be tough to go back to a Constitutional republic as long as statists get to pollute the minds of the young.

“The best laws, though sanctioned by every citizen of the state, will be of no avail unless the young are trained by habit and education in the spirit of the constitution.” - Aristotle

Yeah, a poor job indeed.

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