prompt:
Chapter: Restrictions on the Authority of the Several States

From the New York Packet. Friday, January 25, 1788.

MADISON

To the People of the State of New York:

A FIFTH class of provisions in favor of the federal authority consists
of the following restrictions on the authority of the several States:

1. "No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver a legal tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts; or grant any title of nobility."

The prohibition against treaties, alliances, and confederations makes
a part of the existing articles of Union; and for reasons which need
no explanation, is copied into the new Constitution. The prohibition
of letters of marque is another part of the old system, but is somewhat
extended in the new. According to the former, letters of marque could
be granted by the States after a declaration of war; according to the
latter, these licenses must be obtained, as well during war as previous
to its declaration, from the government of the United States. This
alteration is fully justified by the advantage of uniformity in all
points which relate to foreign powers; and of immediate responsibility
to the nation in all those for whose conduct the nation itself is to be
responsible.

The right of coining money, which is here taken from the States, was
left in their hands by the Confederation, as a concurrent right with
that of Congress, under an exception in favor of the exclusive right of
Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally
submitted to the federal head; and as far as the former might prevent
an inconvenient remittance of gold and silver to the central mint for
recoinage, the end can be as well attained by local mints established
under the general authority.

The extension of the prohibition to bills of credit must give pleasure
to every citizen, in proportion to his love of justice and his knowledge
of the true springs of public prosperity. The loss which America has
sustained since the peace, from the pestilent effects of paper money
on the necessary confidence between man and man, on the necessary
confidence in the public councils, on the industry and morals of the
people, and on the character of republican government, constitutes an
enormous debt against the States chargeable with this unadvised measure,
which must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice on the
altar of justice, of the power which has been the instrument of it. In
addition to these persuasive considerations, it may be observed, that
the same reasons which show the necessity of denying to the States the
power of regulating coin, prove with equal force that they ought not
to be at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there might be as
many different currencies as States, and thus the intercourse among them
would be impeded; retrospective alterations in its value might be made,
and thus the citizens of other States be injured, and animosities be
kindled among the States themselves. The subjects of foreign powers
might suffer from the same cause, and hence the Union be discredited
and embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper money,
than to coin gold or silver. The power to make any thing but gold and
silver a tender in payment of debts, is withdrawn from the States, on
the same principle with that of issuing a paper currency.

Bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of the
social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of
the State constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought not
to be omitted. Very properly, therefore, have the convention added this
constitutional bulwark in favor of personal security and private rights;
and I am much deceived if they have not, in so doing, as faithfully
consulted the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the fluctuating
policy which has directed the public councils. They have seen
with regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators, and snares to the
more-industrious and less-informed part of the community. They have seen,
too, that one legislative interference is but the first link of a long
chain of repetitions, every subsequent interference being naturally
produced by the effects of the preceding. They very rightly infer,
therefore, that some thorough reform is wanting, which will banish
speculations on public measures, inspire a general prudence and
industry, and give a regular course to the business of society. The
prohibition with respect to titles of nobility is copied from the
articles of Confederation and needs no comment.

2. "No State shall, without the consent of the Congress, lay any imposts
or duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the use of
the treasury of the United States; and all such laws shall be subject
to the revision and control of the Congress. No State shall, without the
consent of Congress, lay any duty on tonnage, keep troops or ships of
war in time of peace, enter into any agreement or compact with another
State, or with a foreign power, or engage in war unless actually
invaded, or in such imminent danger as will not admit of delay."

The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of submitting
the regulation of trade to the federal councils. It is needless,
therefore, to remark further on this head, than that the manner in which
the restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the conveniency of
their imports and exports, and to the United States a reasonable check
against the abuse of this discretion. The remaining particulars of this
clause fall within reasonings which are either so obvious, or have been
so fully developed, that they may be passed over without remark.

The SIXTH and last class consists of the several powers and provisions
by which efficacy is given to all the rest.

1. Of these the first is, the "power to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof."

Few parts of the Constitution have been assailed with more intemperance
than this; yet on a fair investigation of it, no part can appear more
completely invulnerable. Without the SUBSTANCE of this power, the whole
Constitution would be a dead letter. Those who object to the article,
therefore, as a part of the Constitution, can only mean that the FORM
of the provision is improper. But have they considered whether a better
form could have been substituted?

There are four other possible methods which the Constitution might have
taken on this subject. They might have copied the second article of the
existing Confederation, which would have prohibited the exercise of
any power not EXPRESSLY delegated; they might have attempted a
positive enumeration of the powers comprehended under the general terms
"necessary and proper"; they might have attempted a negative enumeration
of them, by specifying the powers excepted from the general definition;
they might have been altogether silent on the subject, leaving these
necessary and proper powers to construction and inference.

Had the convention taken the first method of adopting the second
article of Confederation, it is evident that the new Congress would be
continually exposed, as their predecessors have been, to the alternative
of construing the term "EXPRESSLY" with so much rigor, as to disarm the
government of all real authority whatever, or with so much latitude as
to destroy altogether the force of the restriction. It would be easy to
show, if it were necessary, that no important power, delegated by the
articles of Confederation, has been or can be executed by Congress,
without recurring more or less to the doctrine of CONSTRUCTION or
IMPLICATION. As the powers delegated under the new system are more
extensive, the government which is to administer it would find itself
still more distressed with the alternative of betraying the public
interests by doing nothing, or of violating the Constitution by
exercising powers indispensably necessary and proper, but, at the same
time, not EXPRESSLY granted.

Had the convention attempted a positive enumeration of the powers
necessary and proper for carrying their other powers into effect, the
attempt would have involved a complete digest of laws on every subject
to which the Constitution relates; accommodated too, not only to the
existing state of things, but to all the possible changes which futurity
may produce; for in every new application of a general power, the
PARTICULAR POWERS, which are the means of attaining the OBJECT of the
general power, must always necessarily vary with that object, and be
often properly varied whilst the object remains the same.

Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution, the
task would have been no less chimerical; and would have been liable to
this further objection, that every defect in the enumeration would have
been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the exceptions,
and described the residue by the general terms, NOT NECESSARY OR PROPER,
it must have happened that the enumeration would comprehend a few of the
excepted powers only; that these would be such as would be least likely
to be assumed or tolerated, because the enumeration would of course
select such as would be least necessary or proper; and that the
unnecessary and improper powers included in the residuum, would be less
forcibly excepted, than if no partial enumeration had been made.

Had the Constitution been silent on this head, there can be no doubt
that all the particular powers requisite as means of executing the
general powers would have resulted to the government, by unavoidable
implication. No axiom is more clearly established in law, or in reason,
than that wherever the end is required, the means are authorized;
wherever a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method, therefore,
been pursued by the convention, every objection now urged against their
plan would remain in all its plausibility; and the real inconveniency
would be incurred of not removing a pretext which may be seized on
critical occasions for drawing into question the essential powers of the
Union.

If it be asked what is to be the consequence, in case the Congress
shall misconstrue this part of the Constitution, and exercise powers
not warranted by its true meaning, I answer, the same as if they should
misconstrue or enlarge any other power vested in them; as if the general
power had been reduced to particulars, and any one of these were to
be violated; the same, in short, as if the State legislatures should
violate the irrespective constitutional authorities. In the first
instance, the success of the usurpation will depend on the executive
and judiciary departments, which are to expound and give effect to the
legislative acts; and in the last resort a remedy must be obtained from
the people who can, by the election of more faithful representatives,
annul the acts of the usurpers. The truth is, that this ultimate redress
may be more confided in against unconstitutional acts of the federal
than of the State legislatures, for this plain reason, that as every
such act of the former will be an invasion of the rights of the latter,
these will be ever ready to mark the innovation, to sound the alarm to
the people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body between
the State legislatures and the people interested in watching the conduct
of the former, violations of the State constitutions are more likely to
remain unnoticed and unredressed.

2. "This Constitution and the laws of the United States which shall
be made in pursuance thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme law
of the land, and the judges in every State shall be bound thereby,
any thing in the constitution or laws of any State to the contrary
notwithstanding."

The indiscreet zeal of the adversaries to the Constitution has betrayed
them into an attack on this part of it also, without which it would have
been evidently and radically defective. To be fully sensible of this,
we need only suppose for a moment that the supremacy of the State
constitutions had been left complete by a saving clause in their favor.

In the first place, as these constitutions invest the State legislatures
with absolute sovereignty, in all cases not excepted by the existing
articles of Confederation, all the authorities contained in the
proposed Constitution, so far as they exceed those enumerated in the
Confederation, would have been annulled, and the new Congress would have
been reduced to the same impotent condition with their predecessors.

In the next place, as the constitutions of some of the States do
not even expressly and fully recognize the existing powers of the
Confederacy, an express saving of the supremacy of the former would,
in such States, have brought into question every power contained in the
proposed Constitution.

In the third place, as the constitutions of the States differ much from
each other, it might happen that a treaty or national law, of great and
equal importance to the States, would interfere with some and not with
other constitutions, and would consequently be valid in some of the
States, at the same time that it would have no effect in others.

In fine, the world would have seen, for the first time, a system of
government founded on an inversion of the fundamental principles of all
government; it would have seen the authority of the whole society every
where subordinate to the authority of the parts; it would have seen a
monster, in which the head was under the direction of the members.

3. "The Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both of
the United States and the several States, shall be bound by oath or
affirmation to support this Constitution."

It has been asked why it was thought necessary, that the State
magistracy should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of the
United States, in favor of the State constitutions.

Several reasons might be assigned for the distinction. I content myself
with one, which is obvious and conclusive. The members of the federal
government will have no agency in carrying the State constitutions
into effect. The members and officers of the State governments, on the
contrary, will have an essential agency in giving effect to the federal
Constitution. The election of the President and Senate will depend, in
all cases, on the legislatures of the several States. And the election
of the House of Representatives will equally depend on the same
authority in the first instance; and will, probably, forever be
conducted by the officers, and according to the laws, of the States.

4. Among the provisions for giving efficacy to the federal powers might
be added those which belong to the executive and judiciary departments:
but as these are reserved for particular examination in another place, I
pass them over in this.

We have now reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the federal
government, and are brought to this undeniable conclusion, that no part
of the power is unnecessary or improper for accomplishing the necessary
objects of the Union. The question, therefore, whether this amount of
power shall be granted or not, resolves itself into another question,
whether or not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union itself shall
be preserved.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison discusses restrictions on the authority of the states. He defends the prohibition on states entering into treaties, authorizing ships to attack enemy ships, printing money, granting titles of nobility, imposing import and export duties without the consent of Congress, and passing bills of attainder, ex post facto laws, and laws "impairing the obligation of contracts." Madison describes many of these restrictions as so obviously proper as to be unnecessary of a long discussion. He defends the restriction on states printing money by asserting that if every state could regulate the value of money, "there might be as many different currencies as states; and thus, the intercourse among would be impeded." He defends the prohibition on bills of attainder, ex post facto laws, and laws impairing the obligation of contracts as violations of personal rights and "contrary to the first principles of the social compact." Madison also defends the "necessary and proper" clause and the supremacy clause of the Constitution as essential to give "efficacy" to all the other powers and provisions granted to the national government in the Constitution. He asserts that granting the union the right to make all laws "necessary and proper" to fulfilling its responsibilities is based on the simple principle that "wherever the end is required, the means are authorized." If a government has the authority to perform a particular function, it must necessarily have the power to do what is necessary and proper to perform that function. He defends the supremacy clause by asserting that it is a basic characteristic of government to have the authority to pass authoritative law.


prompt:
Chapter: The Alleged Danger From the Powers of the Union to the State Governments.

Considered For the Independent Journal. Saturday, January 26, 1788

MADISON

To the People of the State of New York:

HAVING shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous to the
portion of authority left in the several States.

The adversaries to the plan of the convention, instead of considering
in the first place what degree of power was absolutely necessary for
the purposes of the federal government, have exhausted themselves in a
secondary inquiry into the possible consequences of the proposed degree
of power to the governments of the particular States. But if the Union,
as has been shown, be essential to the security of the people of America
against foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be essential to
guard them against those violent and oppressive factions which embitter
the blessings of liberty, and against those military establishments
which must gradually poison its very fountain; if, in a word, the
Union be essential to the happiness of the people of America, is it not
preposterous, to urge as an objection to a government, without which
the objects of the Union cannot be attained, that such a government
may derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the American
Confederacy formed, was the precious blood of thousands spilt, and
the hard-earned substance of millions lavished, not that the people of
America should enjoy peace, liberty, and safety, but that the government
of the individual States, that particular municipal establishments,
might enjoy a certain extent of power, and be arrayed with certain
dignities and attributes of sovereignty? We have heard of the impious
doctrine in the Old World, that the people were made for kings, not
kings for the people. Is the same doctrine to be revived in the New, in
another shape that the solid happiness of the people is to be sacrificed
to the views of political institutions of a different form? It is too
early for politicians to presume on our forgetting that the public good,
the real welfare of the great body of the people, is the supreme object
to be pursued; and that no form of government whatever has any other
value than as it may be fitted for the attainment of this object. Were
the plan of the convention adverse to the public happiness, my voice
would be, Reject the plan. Were the Union itself inconsistent with the
public happiness, it would be, Abolish the Union. In like manner, as far
as the sovereignty of the States cannot be reconciled to the happiness
of the people, the voice of every good citizen must be, Let the former
be sacrificed to the latter. How far the sacrifice is necessary, has
been shown. How far the unsacrificed residue will be endangered, is the
question before us.

Several important considerations have been touched in the course of
these papers, which discountenance the supposition that the operation
of the federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am
persuaded that the balance is much more likely to be disturbed by the
preponderancy of the last than of the first scale.

We have seen, in all the examples of ancient and modern confederacies,
the strongest tendency continually betraying itself in the members,
to despoil the general government of its authorities, with a very
ineffectual capacity in the latter to defend itself against the
encroachments. Although, in most of these examples, the system has been
so dissimilar from that under consideration as greatly to weaken any
inference concerning the latter from the fate of the former, yet, as the
States will retain, under the proposed Constitution, a very extensive
portion of active sovereignty, the inference ought not to be wholly
disregarded. In the Achaean league it is probable that the federal head
had a degree and species of power, which gave it a considerable likeness
to the government framed by the convention. The Lycian Confederacy, as
far as its principles and form are transmitted, must have borne a still
greater analogy to it. Yet history does not inform us that either of
them ever degenerated, or tended to degenerate, into one consolidated
government. On the contrary, we know that the ruin of one of them
proceeded from the incapacity of the federal authority to prevent the
dissensions, and finally the disunion, of the subordinate authorities.
These cases are the more worthy of our attention, as the external
causes by which the component parts were pressed together were much more
numerous and powerful than in our case; and consequently less powerful
ligaments within would be sufficient to bind the members to the head,
and to each other.

In the feudal system, we have seen a similar propensity exemplified.
Notwithstanding the want of proper sympathy in every instance between
the local sovereigns and the people, and the sympathy in some instances
between the general sovereign and the latter, it usually happened that
the local sovereigns prevailed in the rivalship for encroachments. Had
no external dangers enforced internal harmony and subordination, and
particularly, had the local sovereigns possessed the affections of the
people, the great kingdoms in Europe would at this time consist of as
many independent princes as there were formerly feudatory barons.

The State governments will have the advantage of the Federal government,
whether we compare them in respect to the immediate dependence of the
one on the other; to the weight of personal influence which each
side will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the disposition and
faculty of resisting and frustrating the measures of each other.

The State governments may be regarded as constituent and essential parts
of the federal government; whilst the latter is nowise essential to the
operation or organization of the former. Without the intervention of the
State legislatures, the President of the United States cannot be elected
at all. They must in all cases have a great share in his appointment,
and will, perhaps, in most cases, of themselves determine it. The Senate
will be elected absolutely and exclusively by the State legislatures.
Even the House of Representatives, though drawn immediately from the
people, will be chosen very much under the influence of that class of
men, whose influence over the people obtains for themselves an election
into the State legislatures. Thus, each of the principal branches of the
federal government will owe its existence more or less to the favor of
the State governments, and must consequently feel a dependence, which
is much more likely to beget a disposition too obsequious than too
overbearing towards them. On the other side, the component parts of the
State governments will in no instance be indebted for their appointment
to the direct agency of the federal government, and very little, if at
all, to the local influence of its members.

The number of individuals employed under the Constitution of the
United States will be much smaller than the number employed under the
particular States. There will consequently be less of personal influence
on the side of the former than of the latter. The members of the
legislative, executive, and judiciary departments of thirteen and more
States, the justices of peace, officers of militia, ministerial officers
of justice, with all the county, corporation, and town officers, for
three millions and more of people, intermixed, and having particular
acquaintance with every class and circle of people, must exceed, beyond
all proportion, both in number and influence, those of every description
who will be employed in the administration of the federal system.
Compare the members of the three great departments of the thirteen
States, excluding from the judiciary department the justices of
peace, with the members of the corresponding departments of the single
government of the Union; compare the militia officers of three millions
of people with the military and marine officers of any establishment
which is within the compass of probability, or, I may add, of
possibility, and in this view alone, we may pronounce the advantage
of the States to be decisive. If the federal government is to have
collectors of revenue, the State governments will have theirs also. And
as those of the former will be principally on the seacoast, and not very
numerous, whilst those of the latter will be spread over the face of the
country, and will be very numerous, the advantage in this view also lies
on the same side. It is true, that the Confederacy is to possess, and
may exercise, the power of collecting internal as well as external taxes
throughout the States; but it is probable that this power will not be
resorted to, except for supplemental purposes of revenue; that an option
will then be given to the States to supply their quotas by previous
collections of their own; and that the eventual collection, under
the immediate authority of the Union, will generally be made by the
officers, and according to the rules, appointed by the several States.
Indeed it is extremely probable, that in other instances, particularly
in the organization of the judicial power, the officers of the States
will be clothed with the correspondent authority of the Union. Should it
happen, however, that separate collectors of internal revenue should
be appointed under the federal government, the influence of the whole
number would not bear a comparison with that of the multitude of State
officers in the opposite scale. Within every district to which a federal
collector would be allotted, there would not be less than thirty or
forty, or even more, officers of different descriptions, and many of
them persons of character and weight, whose influence would lie on the
side of the State.

The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the State
governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for the most part,
be connected. The powers reserved to the several States will extend to
all the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State.

The operations of the federal government will be most extensive and
important in times of war and danger; those of the State governments, in
times of peace and security. As the former periods will probably bear
a small proportion to the latter, the State governments will here
enjoy another advantage over the federal government. The more adequate,
indeed, the federal powers may be rendered to the national defense, the
less frequent will be those scenes of danger which might favor their
ascendancy over the governments of the particular States.

If the new Constitution be examined with accuracy and candor, it will
be found that the change which it proposes consists much less in the
addition of NEW POWERS to the Union, than in the invigoration of its
ORIGINAL POWERS. The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and from which no
apprehensions are entertained. The powers relating to war and
peace, armies and fleets, treaties and finance, with the other more
considerable powers, are all vested in the existing Congress by the
articles of Confederation. The proposed change does not enlarge these
powers; it only substitutes a more effectual mode of administering them.
The change relating to taxation may be regarded as the most important;
and yet the present Congress have as complete authority to REQUIRE
of the States indefinite supplies of money for the common defense and
general welfare, as the future Congress will have to require them of
individual citizens; and the latter will be no more bound than the
States themselves have been, to pay the quotas respectively taxed
on them. Had the States complied punctually with the articles of
Confederation, or could their compliance have been enforced by as
peaceable means as may be used with success towards single persons,
our past experience is very far from countenancing an opinion, that the
State governments would have lost their constitutional powers, and have
gradually undergone an entire consolidation. To maintain that such an
event would have ensued, would be to say at once, that the existence
of the State governments is incompatible with any system whatever that
accomplishes the essential purposes of the Union.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison argues that the powers granted to the national government by the Constitution do not threaten the powers left to the states. Madison asserts that state governments will lose some of their importance and sovereignty as a result of the Constitution. However, this is essential to the preservation of the union, which Madison asserts is essential to the public good. Madison points to the history of confederations and feudal states to support his claim that the federal government will to "prove fatal to the state governments." Historically, "local sovereignties prevailed" in contests with central authorities. Madison then lists several reasons for why the state governments will continue to have significant power and relevance under the Constitution. He argues that, if anything, it is the federal government that is at greatest risk of being rendered feeble, as under the Articles. The Constitution corrects that problem by offering the federal government greater powers. Madison closes by asserting that the powers granted to the federal government are not really "new powers" so much as an "invigoration" of the "original powers" granted to it by the Articles. The Constitution does not expand these powers. It just "substitutes a more effectual mode of administering them."


prompt:
Chapter: The Influence of the State and Federal Governments Compared

From the New York Packet. Tuesday, January 29, 1788.

MADISON

To the People of the State of New York:

RESUMING the subject of the last paper, I proceed to inquire whether the
federal government or the State governments will have the advantage with
regard to the predilection and support of the people. Notwithstanding
the different modes in which they are appointed, we must consider both
of them as substantially dependent on the great body of the citizens of
the United States. I assume this position here as it respects the
first, reserving the proofs for another place. The federal and State
governments are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different purposes.
The adversaries of the Constitution seem to have lost sight of the
people altogether in their reasonings on this subject; and to have
viewed these different establishments, not only as mutual rivals and
enemies, but as uncontrolled by any common superior in their efforts
to usurp the authorities of each other. These gentlemen must here be
reminded of their error. They must be told that the ultimate authority,
wherever the derivative may be found, resides in the people alone, and
that it will not depend merely on the comparative ambition or address
of the different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the other.
Truth, no less than decency, requires that the event in every case
should be supposed to depend on the sentiments and sanction of their
common constituents.

Many considerations, besides those suggested on a former occasion, seem
to place it beyond doubt that the first and most natural attachment of
the people will be to the governments of their respective States. Into
the administration of these a greater number of individuals will
expect to rise. From the gift of these a greater number of offices and
emoluments will flow. By the superintending care of these, all the more
domestic and personal interests of the people will be regulated and
provided for. With the affairs of these, the people will be more
familiarly and minutely conversant. And with the members of these,
will a greater proportion of the people have the ties of personal
acquaintance and friendship, and of family and party attachments; on
the side of these, therefore, the popular bias may well be expected most
strongly to incline.

Experience speaks the same language in this case. The federal
administration, though hitherto very defective in comparison with
what may be hoped under a better system, had, during the war, and
particularly whilst the independent fund of paper emissions was in
credit, an activity and importance as great as it can well have in
any future circumstances whatever. It was engaged, too, in a course of
measures which had for their object the protection of everything that
was dear, and the acquisition of everything that could be desirable to
the people at large. It was, nevertheless, invariably found, after
the transient enthusiasm for the early Congresses was over, that the
attention and attachment of the people were turned anew to their own
particular governments; that the federal council was at no time the idol
of popular favor; and that opposition to proposed enlargements of its
powers and importance was the side usually taken by the men who wished
to build their political consequence on the prepossessions of their
fellow-citizens.

If, therefore, as has been elsewhere remarked, the people should in
future become more partial to the federal than to the State governments,
the change can only result from such manifest and irresistible proofs
of a better administration, as will overcome all their antecedent
propensities. And in that case, the people ought not surely to be
precluded from giving most of their confidence where they may discover
it to be most due; but even in that case the State governments could
have little to apprehend, because it is only within a certain sphere
that the federal power can, in the nature of things, be advantageously
administered.

The remaining points on which I propose to compare the federal and State
governments, are the disposition and the faculty they may respectively
possess, to resist and frustrate the measures of each other.

It has been already proved that the members of the federal will be more
dependent on the members of the State governments, than the latter will
be on the former. It has appeared also, that the prepossessions of the
people, on whom both will depend, will be more on the side of the State
governments, than of the federal government. So far as the disposition
of each towards the other may be influenced by these causes, the State
governments must clearly have the advantage. But in a distinct and very
important point of view, the advantage will lie on the same side. The
prepossessions, which the members themselves will carry into the federal
government, will generally be favorable to the States; whilst it will
rarely happen, that the members of the State governments will carry into
the public councils a bias in favor of the general government. A local
spirit will infallibly prevail much more in the members of Congress,
than a national spirit will prevail in the legislatures of the
particular States. Every one knows that a great proportion of the errors
committed by the State legislatures proceeds from the disposition of
the members to sacrifice the comprehensive and permanent interest of the
State, to the particular and separate views of the counties or districts
in which they reside. And if they do not sufficiently enlarge their
policy to embrace the collective welfare of their particular State, how
can it be imagined that they will make the aggregate prosperity of the
Union, and the dignity and respectability of its government, the objects
of their affections and consultations? For the same reason that the
members of the State legislatures will be unlikely to attach themselves
sufficiently to national objects, the members of the federal legislature
will be likely to attach themselves too much to local objects. The
States will be to the latter what counties and towns are to the former.
Measures will too often be decided according to their probable effect,
not on the national prosperity and happiness, but on the prejudices,
interests, and pursuits of the governments and people of the individual
States. What is the spirit that has in general characterized the
proceedings of Congress? A perusal of their journals, as well as the
candid acknowledgments of such as have had a seat in that assembly,
will inform us, that the members have but too frequently displayed
the character, rather of partisans of their respective States, than of
impartial guardians of a common interest; that where on one occasion
improper sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of the
nation have suffered on a hundred, from an undue attention to the local
prejudices, interests, and views of the particular States. I mean not by
these reflections to insinuate, that the new federal government will not
embrace a more enlarged plan of policy than the existing government may
have pursued; much less, that its views will be as confined as those of
the State legislatures; but only that it will partake sufficiently
of the spirit of both, to be disinclined to invade the rights of the
individual States, or the prerogatives of their governments. The motives
on the part of the State governments, to augment their prerogatives
by defalcations from the federal government, will be overruled by no
reciprocal predispositions in the members.

Were it admitted, however, that the Federal government may feel an equal
disposition with the State governments to extend its power beyond the
due limits, the latter would still have the advantage in the means of
defeating such encroachments. If an act of a particular State, though
unfriendly to the national government, be generally popular in that
State and should not too grossly violate the oaths of the State
officers, it is executed immediately and, of course, by means on the
spot and depending on the State alone. The opposition of the federal
government, or the interposition of federal officers, would but inflame
the zeal of all parties on the side of the State, and the evil could
not be prevented or repaired, if at all, without the employment of means
which must always be resorted to with reluctance and difficulty. On the
other hand, should an unwarrantable measure of the federal government be
unpopular in particular States, which would seldom fail to be the case,
or even a warrantable measure be so, which may sometimes be the case,
the means of opposition to it are powerful and at hand. The disquietude
of the people; their repugnance and, perhaps, refusal to co-operate with
the officers of the Union; the frowns of the executive magistracy of the
State; the embarrassments created by legislative devices, which
would often be added on such occasions, would oppose, in any State,
difficulties not to be despised; would form, in a large State, very
serious impediments; and where the sentiments of several adjoining
States happened to be in unison, would present obstructions which the
federal government would hardly be willing to encounter.

But ambitious encroachments of the federal government, on the authority
of the State governments, would not excite the opposition of a single
State, or of a few States only. They would be signals of general alarm.
Every government would espouse the common cause. A correspondence would
be opened. Plans of resistance would be concerted. One spirit would
animate and conduct the whole. The same combinations, in short, would
result from an apprehension of the federal, as was produced by the
dread of a foreign, yoke; and unless the projected innovations should be
voluntarily renounced, the same appeal to a trial of force would be made
in the one case as was made in the other. But what degree of madness
could ever drive the federal government to such an extremity. In the
contest with Great Britain, one part of the empire was employed against
the other. The more numerous part invaded the rights of the less
numerous part. The attempt was unjust and unwise; but it was not in
speculation absolutely chimerical. But what would be the contest in the
case we are supposing? Who would be the parties? A few representatives
of the people would be opposed to the people themselves; or rather one
set of representatives would be contending against thirteen sets of
representatives, with the whole body of their common constituents on the
side of the latter.

The only refuge left for those who prophesy the downfall of the State
governments is the visionary supposition that the federal government may
previously accumulate a military force for the projects of ambition. The
reasonings contained in these papers must have been employed to little
purpose indeed, if it could be necessary now to disprove the reality
of this danger. That the people and the States should, for a sufficient
period of time, elect an uninterrupted succession of men ready to betray
both; that the traitors should, throughout this period, uniformly and
systematically pursue some fixed plan for the extension of the military
establishment; that the governments and the people of the States should
silently and patiently behold the gathering storm, and continue to
supply the materials, until it should be prepared to burst on their own
heads, must appear to every one more like the incoherent dreams of a
delirious jealousy, or the misjudged exaggerations of a counterfeit
zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular
army, fully equal to the resources of the country, be formed; and let
it be entirely at the devotion of the federal government; still it would
not be going too far to say, that the State governments, with the people
on their side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be carried
in any country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million of citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their
affections and confidence. It may well be doubted, whether a militia
thus circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last successful
resistance of this country against the British arms, will be most
inclined to deny the possibility of it. Besides the advantage of being
armed, which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which the people
are attached, and by which the militia officers are appointed, forms a
barrier against the enterprises of ambition, more insurmountable than
any which a simple government of any form can admit of. Notwithstanding
the military establishments in the several kingdoms of Europe, which are
carried as far as the public resources will bear, the governments are
afraid to trust the people with arms. And it is not certain, that with
this aid alone they would not be able to shake off their yokes. But were
the people to possess the additional advantages of local governments
chosen by themselves, who could collect the national will and direct the
national force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may be
affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned in spite of the legions which
surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of
which they would be in actual possession, than the debased subjects
of arbitrary power would be to rescue theirs from the hands of their
oppressors. Let us rather no longer insult them with the supposition
that they can ever reduce themselves to the necessity of making
the experiment, by a blind and tame submission to the long train of
insidious measures which must precede and produce it.

The argument under the present head may be put into a very concise
form, which appears altogether conclusive. Either the mode in which
the federal government is to be constructed will render it sufficiently
dependent on the people, or it will not. On the first supposition, it
will be restrained by that dependence from forming schemes obnoxious to
their constituents. On the other supposition, it will not possess the
confidence of the people, and its schemes of usurpation will be easily
defeated by the State governments, who will be supported by the people.

On summing up the considerations stated in this and the last paper, they
seem to amount to the most convincing evidence, that the powers proposed
to be lodged in the federal government are as little formidable to those
reserved to the individual States, as they are indispensably necessary
to accomplish the purposes of the Union; and that all those alarms which
have been sounded, of a meditated and consequential annihilation of
the State governments, must, on the most favorable interpretation, be
ascribed to the chimerical fears of the authors of them.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison continues and concludes the argument begun in the previous paper. He asserts that the powers of the federal government under the proposed constitution will not threaten the powers reserved to the states. Madison begins the paper by reminding his audience that the American people are the common superior of both the federal and state governments. These two different types of governments have different powers, intended for different purposes, but nevertheless subject to the ultimate control of the voters. Madison then employs a series of arguments to convince his audience that the state governments have several natural advantages over the federal government in terms of securing the support of the people. State officials and representatives live in close daily contact with the electorate and deal with issues that directly impact their lives. Furthermore, just as representatives in state governments are typically biased towards their home counties and towns, so will representatives in Congress be biased towards their home states: "A local spirit will infallibly prevail much more in the members of the congress, than a national spirit will prevail in the legislatures of the particular states." Furthermore, Madison argues that if the federal government were to encroach on the rights of the states, the latter would have a significant advantage in resisting such action. States could ultimately band together in resisting the federal government. Madison dismisses as highly unlikely the chances of the federal government being able to raise an army powerful enough to overcome all the state militias.


prompt:
Chapter: The Particular Structure of the New Government and the Distribution of
Power Among Its Different Parts.

For the Independent Journal. Wednesday, January 30, 1788.

MADISON

To the People of the State of New York:

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.

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. 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. 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.

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. 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. 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. 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. 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.

The oracle who is always consulted and cited on this subject is the
celebrated Montesquieu. 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. Let us endeavor, in the first place, to ascertain his meaning
on this point.

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

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. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when
made, have, under certain limitations, the force of legislative acts.
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. 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. 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.

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. 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. 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. This, however, is not
among the vices of that constitution. 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. 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. 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. 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.

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

If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical 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. 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." Her constitution accordingly mixes these departments in several
respects. The Senate, which is a branch of the legislative department,
is also a judicial tribunal for the trial of impeachments. 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. 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. Several of the officers of state are also appointed by the
legislature. And the members of the judiciary department are appointed
by the executive department.

The constitution of Massachusetts has observed a sufficient though less
pointed caution, in expressing this fundamental article of liberty.
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." 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. It goes no farther
than to prohibit any one of the entire departments from exercising the
powers of another department. In the very Constitution to which it is
prefixed, a partial mixture of powers has been admitted. 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. The members
of the judiciary department, again, are appointable by the executive
department, and removable by the same authority on the address of the
two legislative branches. Lastly, a number of the officers of government
are annually appointed by the legislative department. 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.

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.

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

The constitution of New Jersey has blended the different powers of
government more than any of the preceding. 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. The same legislative branch acts again as executive council of
the governor, and with him constitutes the Court of Appeals. 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.

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. 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. 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. The members of the executive council are made EX-OFFICIO
justices of peace throughout the State.

In Delaware, the chief executive magistrate is annually elected by the
legislative department. The speakers of the two legislative branches are
vice-presidents in the executive department. 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.
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. The principal officers of the
executive department are appointed by the legislative; and one branch of
the latter forms a court of impeachments. All officers may be removed on
address of the legislature.

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. Her constitution,
notwithstanding, makes the executive magistrate appointable by the
legislative department; and the members of the judiciary by the
executive department.

The language of Virginia is still more pointed on this subject. 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." 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 appointable 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. The executive prerogative
of pardon, also, is in one case vested in the legislative department.

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.

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

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. Even justices of the
peace are to be appointed by the legislature.

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. 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. 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. 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 interesting subject will be resumed in the ensuing paper.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: James Madison begins this paper by telling his readers that he is going to examine a specific principle of republican government: "separation of powers." One of the principal objections to the constitution is that it violates this important principle. Its opponents claim that the three branches of government are not sufficiently separate and independent and that power is too unevenly distributed. It is feared that the new government will collapse, and that liberty will be threatened. Madison agrees with those who place great importance on the separation of powers, especially on the point that an unequal division of power could result in the loss of liberty. If one branch has too much power, it does not matter how many men govern or how they obtain office. Too much power in one branch of government "is the very definition of tyranny." If these claims were true, Madison says that no other arguments would need oppose it. He, however, is convinced that this charge cannot be supported. How separate should each branch of government be? Montesquieu, the French political writer, formulated this principle of government. He took the British constitution as his model, which he called "the mirror of political liberty." However, the most casual glance at that constitution reveals that the branches of the British government are far from totally separate or distinct. For example, the English king acts in a legislative capacity when he enters into treaties with foreign sovereigns: once treaties are signed they have the force of legislative acts. The English king not only appoints and removes judges; he frequently consults them. The judicial branch, then, acts in an advisory capacity to the executive branch. The legislative branch advises the king on constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial power. From these few facts, Madison infers that Montesquieu, when he wrote that "there can be no liberty where the legislative and executive powers are united in the same person . . . or, if the power of judging be not separated from the legislative and executive powers," did not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches. Madison continues that if one looks at the state constitutions, there is no state in which the branches of government are absolutely separate and distinct. The state constitutions do not violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and neither does the United States Constitution.


prompt:
Chapter: These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other.

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

MADISON

To the People of the State of New York:

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.

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.

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 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 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.
The legislative department is everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex.

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.

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.

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 pecuniary 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.

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.

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 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.

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 usurped.

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.

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.

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 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

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Publius begins by telling the reader that we discussed some of the issues raised by the doctrine known as "separation of powers." This principle of republican government does not imply that the three branches need to be completely separate and independent. The very opposite is true. In order that this doctrine can operate effectively, each branch of government must have sufficient power to impose some restraints over the other two. The Constitution grants to each branch certain exclusive powers. These powers should not be interfered with; however, power not carefully controlled tends to expand. Our first task, he writes, is to understand and distinguish the differences between legislative, executive, and judicial power. This is necessary to protect the legitimate powers of each branch. It is not enough to simply set forth on paper what the proper boundaries are. There must be some latitude, some overlap, in the definition of powers assigned to each branch. Experience with state governments has shown that theoretical checks written into the state constitutions are inadequate, particularly in preventing the growth of legislative power. The most serious mistake made by the framers of republican forms of government is that they concerned themselves exclusively with the problem of too much executive power. They forgot that legislative tyranny is as evil as executive tyranny. In hereditary monarchies the king is feared; in direct democracies the executive is also feared because the legislative branch is too large to effectively check the executive, and power is so highly diffused that conflicts are difficult to resolve. In direct democracies, the legislature cannot tyrannize because it cannot govern. In the proposed government, however, it is the legislative branch that is most likely to abuse power. More power, both unrefined and unlimited, has been granted to it than to the other two branches. In addition, the legislative branch controls the money and has the greatest influence in the determination of salaries paid to government employees. Such a situation invites corruption. Presidential power, on the other hand, is simpler in nature, and the Constitution clearly defines and limits it. The same is true of judicial power. Any attempt by these two branches to infringe upon the Congress would be quickly detected and blocked.


prompt:
Chapter: Periodical Appeals to the People Considered

From the New York Packet. Tuesday, February 5, 1788.

MADISON

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to
the people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION.

It will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for ENFORCING the Constitution,
by keeping the several departments of power within their due bounds,
without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed
periods appear to be nearly as ineligible as appeals on particular
occasions as they emerge. If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of
recent date, and will be connected with all the circumstances which
tend to vitiate and pervert the result of occasional revisions. If the
periods be distant from each other, the same remark will be applicable
to all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage is
inseparable from inconveniences which seem to counterbalance it. In the
first place, a distant prospect of public censure would be a very feeble
restraint on power from those excesses to which it might be urged by
the force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent
on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the
future distance of ten, fifteen, or twenty years? In the next place, the
abuses would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where this
might not be the case, they would be of long standing, would have taken
deep root, and would not easily be extirpated.

The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried
in one of the States. One of the objects of the Council of Censors which
met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,
"whether the constitution had been violated, and whether the legislative
and executive departments had encroached upon each other." This
important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as
a single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the case
under consideration, it involves some facts, which I venture to remark,
as a complete and satisfactory illustration of the reasoning which I
have employed.

First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active members had also been
active and leading characters in the parties which pre-existed in the
State.

Second. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.

Third. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had
this not been the case, the face of their proceedings exhibits a
proof equally satisfactory. In all questions, however unimportant
in themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a variety
of distinct questions, they inevitably fall into different opinions
on some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.

Fourth. It is at least problematical, whether the decisions of this body
do not, in several instances, misconstrue the limits prescribed for the
legislative and executive departments, instead of reducing and limiting
them within their constitutional places.

Fifth. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed,
have had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest.

This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.

This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of party.
Is it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State,
at the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction
of parties necessarily implies either a universal alarm for the public
safety, or an absolute extinction of liberty.

Were the precaution taken of excluding from the assemblies elected by
the people, to revise the preceding administration of the government,
all persons who should have been concerned with the government within
the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would
in other respects be little better qualified. Although they might not
have been personally concerned in the administration, and therefore not
immediately agents in the measures to be examined, they would probably
have been involved in the parties connected with these measures, and
have been elected under their auspices.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Madison rejects the proposal to allow for periodical, or regular, appeals to the people as a means of "preventing and correcting infractions of the constitution." At the time, some had proposed adding to the constitution certain provisions allowing for the government to be subjected to some sort of public examination on a regular basis to ensure that it is not violating the constitution. However, Madison doubts that this will be successful. He suggests that if the intervals between the examinations are too short, it will be difficult for the people to be impartial since "the measures to be reviewed and rectified...will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions." If the intervals are too long, however, the distant possibility of public censure will not be an adequate check on the behavior of government officials. Madison supports his position with the example of a council of censors that met in Pennsylvania in 1783 and 1784 for the purpose of revising the state constitution "in order to correct recent breaches of it." This failed in part because the members of the council were not impartial, were motivated by passion rather than reason, and were themselves been members of government within the period to be reviewed.