Federalist 48

Federalist 48

From the New York Packet.
Friday, February 1, 1788
MADISON

Summary

In this paper, Madison argues that by nature each branch will take over any power it can. He argues that there must be more than constitutional law regulating each branch. If no action is taken, the legislative branch can wind up overpowering the other branches of government. Most of the paper then focuses on proving how the legislative branch is more powerful than the other two branches of government.

To the People of the State of New York: TRANSLATION
IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. In Federalist Paper 47, it was shown that the legislative, executive, and judiciary branches should not be completely separated. Here I will prove that connections between the branches are actually necessary to create a good government.
It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be is the great problem to be solved. Everyone agrees that each branch should have enough power that the other branches cannot control them. The key is how to restrain that power. How to assure this is what must be solved.
Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriersparchment barriersMadison's term for saying the rights were only on paper—emphasizing how much they could not protect. parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacyefficacy (noun) the ability to produce a desired or intended result. 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. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. Will it be enough to trust that simply defining these powers in the Constitution will be enough to stop each of the branches from seizing too much power and becoming too dominant? While this method is one that has been relied on, experience shows us it is greatly overrated and more defense is needed against the more powerful parts of the government. The legislative branch is the most likely to try to abuse its power.
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. The founders of our republics have done an outstanding job and although nothing can be less pleasing than to point out flaws in the system, errors do exist. They seem to have overlooked the power possessed by the legislative branch, which can lead to tyranny; the executive branch is not the only one that should be feared as a threat to liberty.
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. Although, due to the structure, one looks to the executive branch as a source of danger, in a democracy, the legislative branch must be looked at as well. In a representative republic, the executive power is carefully limited, but the legislative power gains new authority. It is this branch that we need to be most careful about.
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniarypecuniary of or relating to money rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. The legislative branch stands out amongst the other parts of the government because its powers are not as clearly outlined, making it easier for it to take advantage of the other two branches. The executive and judicial branches are simpler in their nature, and any attempt by these branches to take advantage will be much more transparent. Furthermore, the legislative branch is responsible for regulating the money of the people (taxes) and for paying the other branches. This means that both the executive and the judicial branch are dependent on the legislative branch.
I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. So far I have used logic to prove my point, but if evidence were necessary, there would be overflowing examples. However, to keep it simple, I will present the example of two states where the legislature has tried to overcome the power of another branch.
The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting Notes on the State of Virginia, p. 195. "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. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. 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." The first example is Virginia which keeps the three branches separate, as is demonstrated by a quote from a passage of Jefferson. The quote itself states that just because more people hold these positions, it does not mean they will be less despotic, or tyrannical. The power will simply be in the hands of more people who can be as oppressive as just one person. Venice is a prime example of what we did not fight for—“elective despotism;” instead, we need a system of checks and balances. That is why the three branches were set up, to balance the power of one another. However, the executive and judicial branches were left dependent on the legislative because the legislative branch can make laws that directly affect the executive and judicial branches.
The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the Constitution, was “to inquire whether the Constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the Constitution.” In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the Constitution had been flagrantly violated by the legislature in a variety of important instances. The other example is Pennsylvania, which created the Council of Censors, which met in the years 1783-1784. The Council was responsible for investigating, whether the actions of the legislative and executive branches of government were constitutional—whether the legislators and the executive worked for the people or for themselves. The Council’s conclusion was that the legislative branch had violated its powers, according to the Pennsylvania Constitution, on many occasions.
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 usurpedusurpedtake (a position of power or importance) illegally or by force. .

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.

Laws that had been passed were violating the Constitution because they had not been printed for the people to see before becoming laws. The right to a trial by jury had also been violated, and the legislative branch had started executing powers of the executive. The salaries of the judges had been changed even though they were supposed to receive a fixed amount. Lastly, cases that were supposed to be reviewed by the judiciary branch instead landed in the legislative branch.
Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. To see in more detail, review the journals of the council. While some of these violations by the legislative branch may be connected to the dangers the state faced during the war, most are evidence that a government that does not adequately control the legislature will be a bad government.
It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: first, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; second, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; third, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The executive branch of Pennsylvania has also violated the state’s Constitution, but it hasn’t been nearly as problematic as the legislative violations. The executive branch had reasons to do so: (1) they were necessities of war that were recommended by Congress or by the president; (2) they obeyed or went along with the attitudes/opinions of the legislative branch; (3) the executive branch of Pennsylvania has more members than most, therefore it is actually more like a legislature than a true executive.
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.

PUBLIUS

From these observations I must conclude that separation of power as a form of checks and balance is not enough to stop tyrannical concentration to end up in the same hands.
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