Federalist No. 51
1788
To the People of the State of New York: To what expedient then shall
we finally resort for maintaining in practice the necessary partition
of power among the several departments, as laid down in the constitution?
The only answer that can be given is, that as all these exterior provisions
are found to be inadequate, the defect must be supplied, by so contriving
the interior structure of the government, as that its several constituent
parts may, by their mutual relations, be the means of keeping each
other in their proper places. Without presuming to undertake a full
development of this important idea, I will hazard a few general observations,
which may perhaps place it in a clearer light, and enable us to form
a more correct judgment of the principles and structure of the government
planned by the convention.
In order to lay a due foundation for that separate and distinct exercise
of the different powers of government, which to a certain extent,
is admitted on all hands to be essential to the preservation of liberty,
it is evident that each department should have a will of its own;
and consequently should be so constituted, that the members of each
should have as little agency as possible in the appointment of the
members of the others. Were this principle rigorously adhered to,
it would require that all the appointments for the supreme executive,
legislative, and judiciary magistracies, should be drawn from the
same fountain of authority, the people, through channels, having no
communication whatever with one another. Perhaps such a plan of constructing
the several departments would be less difficult in practice than it
may in contemplation appear. Some difficulties however, and some additional
expense, would attend the execution of it. Some deviations therefore
from the principle must be admitted. In the constitution of the judiciary
department in particular, it might be inexpedient to insist rigorously
on the principle; first, because peculiar qualifications being essential
in the members, the primary consideration ought to be to select that
mode of choice, which best secures these qualifications; secondly,
because the permanent tenure by which the appointments are held in
that department, must soon destroy all sense of dependence on the
authority conferring them.
It is equally evident that the members of each department should be
as little dependent as possible on those of the others, for the emoluments
annexed to their offices. Were the executive magistrate, or the judges,
not independent of the legislature in this particular, their independence
in every other would be merely nominal.
But the great security against a gradual concentration of the several
powers in the same department, consists in giving to those who administer
each department, the necessary constitutional means, and personal
motives, to resist encroachments of the others. The provision for
defense must in this, as in all other cases, be made commensurate
to the danger of attack. Ambition must be made to counteract ambition.
The interest of the man must be connected with the constitutional
rights of the place. It may be a reflection on human nature, that
such devices should be necessary to control the abuses of government.
But what is government itself but the greatest of all reflections
on human nature? If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal controls
on government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this:
You must first enable the government to control the governed; and
in the next place, oblige it to control itself. A dependence on the
people is no doubt the primary control on the government; but experience
has taught mankind the necessity of auxiliary precautions.
This policy of supplying by opposite and rival interests, the defect
of better motives, might be traced through the whole system of human
affairs, private as well as public. We see it particularly displayed
in all the subordinate distributions of power; where the constant
aim is to divide and arrange the several offices in such a manner
as that each maybe a check on the other; that the private interest
of every individual, may be a sentinel over the public rights. These
inventions of prudence cannot be less requisite in the distribution
of the supreme powers of the state.
But it is not possible to give to each department an equal power of
self defense. In republican government the legislative authority,
necessarily, predominates. The remedy for this inconveniency is, to
divide the legislature into different branches; and to render them
by different modes of election, and different principles of action,
as little connected with each other, as the nature of their common
functions, and their common dependence on the society, will admit.
It may even be necessary to guard against dangerous encroachments
by still further precautions. As the weight of the legislative authority
requires that it should be thus divided, the weakness of the executive
may require, on the other hand ,that it should be fortified. An absolute
negative, on the legislature, appears at first view to be the natural
defense with which the executive magistrate should be armed. But perhaps
it would be neither altogether safe, nor alone sufficient. On ordinary
occasions, it might not be exerted with the requisite firmness; and
on extraordinary occasions, it might be perfidiously abused. May not
this defect of an absolute negative be supplied, by some qualified
connection between this weaker department, and the weaker branch of
the stronger department, by which the latter may be led to support
the constitutional rights of the former, without being too much detached
from the rights of its own department?
If the principles on which these observations are founded be just,
as I persuade myself they are, and they be applied as a criterion,
to the several state constitutions, and to the federal constitution,
it will be found, that if the latter does not perfectly correspond
with them, the former are infinitely less able to bear such a test.
There are moreover two considerations particularly applicable to the
federal system of America, which place that system in a very interesting
point of view.
First. In a single republic, all the power surrendered by the people
is submitted to the administration of a single government; and usurpations
are guarded against by a division of the government into distinct
and separate departments. In the compound republic of America, the
power surrendered by the people, is first divided between two distinct
governments, and then the portion allotted to each, subdivided among
distinct and separate departments. Hence a double security arises
to the rights of the people. The different governments will control
each other; at the same time that each will be controlled by itself.
Second. It is of great importance in a republic, not only to guard
the society against the oppression of its rulers; but to guard one
part of the society against the injustice of the other part. Different
interests necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the minority
will be insecure. There are but two methods of providing against this
evil: The one by creating a will in the community independent of the
majority, that is, of the society itself; the other by comprehending
in the society so many separate descriptions of citizens, as will
render an unjust combination of a majority of the whole, very improbable,
if not impracticable. [The following text was broken into paragraphs
to aid readability.]
The first method prevails in all governments possessing an hereditary
or self appointed authority. This at best is but a precarious security;
because a power independent of the society may as well espouse the
unjust views of the major, as the rightful interests, of the minor
party, and may possibly be turned against both parties.
The second method will be exemplified in the federal republic of the
United States. While all authority in it will be derived from and
dependent on the society, the society itself will be broken into so
many parts, interests and classes of citizens, that the rights of
individuals or of the minority, will be in little danger from interested
combinations of the majority. In a free government, the security for
civil rights must be the same as for religious rights. It consists
in the one case in the multiplicity of sects. The degree of security
in both cases will depend on the number of interests and sects; and
this may be presumed to depend on the extent of country and number
of people comprehended under the same government. This view of the
subject must particularly recommend a proper federal system to all
the sincere and considerate friends of republican government: Since
it shows that in exact proportion as the territory of the union may
be formed into more circumscribed confederacies or states, oppressive
combinations of a majority will be facilitated; the best security
under the republican form, for the rights of every class of citizens,
will be diminished; and consequently, the stability and independence
of some member of the government, the only other security, must be
proportionally increased.
Justice is the end of government. It is the end of civil society.
It ever has been, and ever will be pursued, until it be obtained,
or until liberty be lost in the pursuit. In a society under the forms
of which the stronger faction can readily unite and oppress the weaker,
anarchy may as truly be said to reign, as in a state of nature where
the weaker individual is not secured against the violence of the stronger:
And as in the latter state even the stronger individuals are prompted
by the uncertainty of their condition, to submit to a government which
may protect the weak as well as themselves: So in the former state,
will the more powerful factions or parties be gradually induced by
alike motives, to wish for a government which will protect all parties,
the weaker as well as the more powerful. It can be little doubted,
that if the state of Rhode Island was separated from the confederacy,
and left to itself, the insecurity of rights under the popular form
of government within such narrow limits, would be displayed by such
reiterated oppressions of factious majorities, that some power altogether
independent of the people would soon be called for by the voice of
the very factions whose misrule had proved the necessity of it.
In the extended republic of the United States, and among the great
variety of interests, parties and sects which it embraces, a coalition
of a majority of the whole society could seldom take place on any
other principles than those of justice and the general good; and there
being thus less danger to a minor from the will of the major party,
there must be less pretext also, to provide for the security of the
former, by introducing into the government a will not dependent on
the latter; or in other words, a will independent of the society itself.
It is no less certain than it is important, notwithstanding the contrary
opinions which have be entertained, that the larger the society, provided
it lie within a practicable sphere, the more duly capable it will
be of self government. And happily for the republican cause, the practicable
sphere may be carried to a very great extent, by a judicious modification
and mixture of the federal principle.
JAMES MADISON
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