The Federalist: The Essential Essays, by Alexander Hamilton, James Madison, and John Jay by Jack N. Rakove

Author:Jack N. Rakove [Rakove, Jack N.]
Language: eng
Format: epub
Tags: History
Publisher: Bedford/St. Martin's
Published: 2003-02-03T05:00:00+00:00

　FEDERALIST 48 　—Madison

The Same Subject Continued with a View to the Means of Giving Efficacy in Practice to That Maxim, February 1, 1788

The declarations of rights that accompanied the first state constitutions often included articles affirming the basic concept of separated powers. But Madison had come to believe that such statements _or, for that matter, declarations of rights themselves _were only “parchment barriers” unless supported by effective mechanisms of enforcement. If the goal of separation was to protect the liberty of citizens by preserving each department in the exercise of its proper functions, then the challenge was to identify where encroachments were most likely to arise. In the Anglo-American tradition, the legislature had been the body that historically required protection against the crown and its minions. In 1776, Americans had accordingly looked backward and treated the unchecked power of the executive as the great danger. But experience and logic now suggested another conclusion. In a republic, the chief threat would come from the legislature itself, and an effective theory of separation would have to take that into account. Madison thus uses Fedeicalist 48 to explain why the legislature is the most dangerous institution in a republican government. His explanation combines an appreciation of the political advantages that the legislature enjoys over the other branches with a recognition that its very power to make rules will enable it to encroach on the executive and judiciary through “complicated and indirect measures.” ciary departments should be wholly unconnected with each other. I shall undertake in the next place, to shew that unless these departments be so far connected and blended, as to give to each a constitutional controul 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 compleatly administered by either of the other departments. It is equally evident, that neither 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

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