The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
To the People of the State of New York:
|TO WHAT expedientexpedient, n. A means to an end., 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 contrivingcontrive, v. To devise, invent, design (a material structure, literary composition, institution, etc.). the interior structure of the government as that its several constituentconstituent, adj. That constitutes or makes a thing what it is; formative, essential; characteristic, distinctive. parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.||What is the best way to maintain the “necessary partition of power” among the different branches of government? Having people outside the government regulate it does not work and has been “found to be inadequate.” Rather, in addition to external regulation, the collaborative group of people that form the institution of government must “keep each other in their proper places.”|
|In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executiveSupreme executive refers to the president., legislative, and judiciary magistraciesmagistrate, n. A justice of the peace, a judge.
Magistracy refers to the position or office of a magistrate. should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedientinexpedient, adj. Not expedient; not advantageous, useful, or suitable in the circumstances; unprofitable, inadvisable, impolitic. Notice this is a different definition from the previous use of expedient. to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferringconfer, v. To bring together, gather, collect. them.
|The only way to form a government with departments that are “separate and distinct” from one another is to ensure that “each department … [has] a will of its own.” Each department must have its own agenda, responsibilities, and powers to follow, carry out, and enforce. Additionally, each department should have as little to do “as possible in the appointment of the members” to the other departments; all authority “should be drawn from the same fountain,” the people, not from the government and its staff. While the system described here would be best, it is problematic and cannot be followed exactly. The judiciary department, for example, should not be held to the same standards as all the other departments since judges require certain qualifications that an electorate may not be fit to decide and the post should not depend on popular support. Abiding by these principles will ensure “the preservation of liberty.”|
|It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emolumentsemolument, n. Advantage, benefit, comfort. annexed to their offices. Were the executive magistratemagistrate, n. A civil officer charged with the administration of the law, a member of the executive government. Notice this definition is different from the judiciary magistrate., or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. 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 encroachmentsencroach, v. To advance, intrude beyond natural or conventional limits. of the others. The provision for defense must in this, as in all other cases, be made commensuratecommensurate, adj. Having the same measure; of equal extent, duration, or magnitude; coextensive. 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 devicesdevice, n. Will, pleasure, inclination, fancy, desire. 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.||The salary of the governmental staff should not be dependent on decisions made by the members of the other branches. If a different branch controlled an office holder’s salary, “their independence … would be nominal.” In order to keep one department from becoming too powerful and obtaining too much power, the heads of each department should be given special authority and “the necessary constitutional means and personal motives to resist encroachments” by the other departments into their own department. The best way to ensure administrators regulate one another is to have them compete and contest with each other for more power - “ambition must be made to counteract ambition.”
Human nature dictates that such precautions and safeguards from abuses of power by government are necessary in the first place since government is “the greatest of all reflections on human nature.” If humans were perfect, then no overarching institution (government) would be required to regulate society. But since men are men, external and internal controls on government are necessary. The main difficulty in establishing this kind of government is enabling it to control citizens while still protecting itself from abuses of power.
|A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliaryauxiliary, adj. Subsidiary to the ordinary, additional. precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinelsentinel, n. One who or something which keeps guard like a military sentinel.
Here, Publius is referring to the private interest of the individual as a figurative sentinel. over the public rights. These inventions of prudenceprudence, n. The ability to recognize and follow the most suitable or sensible course of action. cannot be less requisiterequisite, adj. Required by circumstances or regulations; appropriate; necessary for a purpose, indispensable. in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniencyinconveniency adj. Inconsistency. 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.
|The best control from governmental abuse of power is ensuring its dependence on election by the people. But historical attempts have demonstrated that additional and “auxiliary” measures are necessary to keep the government in check. People—especially people in power—are not always motivated to do the right thing, but tying their personal ambitions to what is good for the whole country will force them to do good. The best way to ensure that the government does not over step its bounds is to “divide and arrange the several offices in such a manner as that each may be a check on the other.” In order to prevent the legislative body from becoming too powerful though, it must be “divde[d] … into different branches” and these branches must be “as little connected with each other” as possible (different election modes and different functions). Even split, the legislative branch may still be too powerful and the executive branch may have to be given additional powers (like the veto) to rectify the unevenness of power.|
|An absolute negativeAbsolute negative refers to the president's power to veto. 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 perfidiouslyperfidiously, adv. In a perfidious manner; treacherously. 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? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterioncriterion, n. An organ, faculty, or instrument of judgment. to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.||Allowing the President to have “an absolute negative” on laws passed by the legislature seems to be “neither altogether safe nor alone sufficient.” This is because at certain times it may “not be exerted with requisite firmness” and other times it may be “abused.” Therefore, the solution must be to give the weakest part of the strongest branch, the Senate, the power to overrule the President’s veto, evening out the forces of power.|
|There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpationsusurpation, n. The unlawful or forcible seizure or occupation of a throne, sovereign power, etc.; wrongful assumption of supreme authority. are guarded against by a division of the government into distinct and separate departments. In the compound republicCompound republic refers to the federal government, with both state governments and a central national government, in addition to the separation of powers at both levels. 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. Second. 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.||Federal government in America can be organized in one of two ways, a single republic, or a compound republic. In a single republic, the people surrender all their power to the administration of that government which is protected from corruption through division of power into separate departments. In a compound republic, the power surrendered by the people is split between two different governments and then divided into departments among the two separate governments. A compound government is therefore more secure, because power is more widely disbursed, and the two governments must answer to each other. It is important in a republic to protect people from both tyrannous leaders and tyranny by other citizens. Different groups will always have different interests, and when a majority forms, the minority has to be protected.|
|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. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precariousprecarious, adj. Dependent on chance or circumstance; uncertain, liable to fail; exposed to risk; hazardous; insecure, unstable. security; because a power independent of the society may as well espouseespouse, v. To pledge, commit, engage.
Publius could also be referring a figurative marriage between the views of the majority and the interests of the minority. the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. 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.
|There are two ways to protect minority group interests. The first is to have a protector of minorities that exists outside of the society itself. The second is to divide a society into so many distinct groups that forming a unified majority becomes nearly impossible. The first method works best in monarchies, but this is still not entirely safe, because they are just as likely to adopt the unjust views of the majority group as the rightful views of a minority group. The second method will work best in the United States, because it will be broken into so many parts that no clear majority will easily emerge, protecting the rights of minority groups.|
|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 comprehendedcomprehend, v. To include. under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribedcircumscribed, adj. Limited, confined, restricted. Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the endend n. A goal or result one seeks to achieve. 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 factionfaction, n. A group of people united in maintaining a cause, policy, or opinion in opposition to others. 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 gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.||Federal government will also protect both civil and religious rights. Because the nation is large, there will be many different competing groups, which keeps one group from dominating. When the states exist individually, they are not large enough to protect the individual interests of minorities, religious or otherwise. Putting the states into one confederacy is the most effective way to protect “every class of citizen.” Government should work to promote justice, because that is the point of having a civilized society. When minorities are oppressed, there is no justice, and we might as well not have any government at all. Only when larger, more powerful groups are subject to government are they prevented from dominating weaker groups.|
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. 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.
|Take for example the state of Rhode Island. If there was no federal government, the minority groups in this small state would be easily overrun by an oppressive majority. However, with a federal government in place, no such majority would be able to form, unless they were uniting over widely held principles like “justice and the general good.” As this argument proves, larger societies are better shielded from corruption, and more likely to be self-sufficient. Fortunately for those who wish to have a strong republican government, this goal can be met using the federal principle set forth in this paper.|