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

 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.

