Federalist 47
The next five essays, all written by Madison, may be thought of as the hinge on which the collection rests. Prior to these five essays Publius largely deals with the most consequential powers of the federal government under the Constitution, constantly stressing union as the solution to existing problems, and after these essays focuses more on the different branches of government.
Federalist 47-51 have a greater unity to them than other contiguous essays tend to have. In them Madison puts on his theorist hat to a degree only equaled in Federalist 10. In these five essays he carefully makes the case for a central feature of our Constitutional design: the separation of power between three branches of government.
Historical Background
Readers should keep in mind that Publius is operating in a space in-between two models of governing. On the one hand, you had the operations of state governments, which displayed similarity but also variety. Most states had engaged in making their new constitutions in the decade prior to the Philadelphia convention, and that flurry of constitution-making provided working and comparative models for the delegates to consider. Two of the states had unicameral legislatures; all the states had one-year terms for lower house legislators; governors typically had one-year terms and strict restrictions placed on them, except in New York and Massachusetts, where the chief executive had greater powers.
On the other hand, there was the British Constitutional model, regarded by many federalists (and Montesquieu) as the best form of governmental arrangement possible. Whereas many of the state constitutions sought a strong separation between executive, legislative, and judicial powers, the British Constitution blended them, most dramatically in its policy of “the king in parliament.” Under the Westminster system, the monarch, the House of Lords, and the House of Commons acted in conjunction with one another. Originally the king was considered supreme within parliament, but even after parliament asserted (and gained, in the Glorious Revolution) its preeminence, the king remained part of it. To this day in Canada, for example, all legislative enactments are attributed to the king.
These two models overlapped in important ways, but also created a tension in constitutional deliberations. Would it be possible or desirable to create a federal constitution where no blending of power occurred? If not, how much blending would all-but-guarantee failure of ratification? Madison, after all, agreed that “the accumulation” of executive and legislative (or judicial) power into the same hands “may justly be pronounced the very definition of tyranny” — above all the thing everyone sought to avoid.
Are Powers Actually Separated?
Madison pointed out in Federalist 47 that even though Montesquieu argued vociferously against the unifying of legislative, executive, or judicial power, he also, according to Madison “did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other.”
Cato, in his Fourth letter, complaining about the power of the executive, clothed as he is with “the splendour of a prince,” warned of “the blending of executive and legislative powers,” particularly in the vice-president presiding over the senate and in the fact president was “a constituent part of the legislative power” when wielding his veto authority. Furthermore, while Congress would recess, the executive never would, meaning that although “the president, during the sitting of the legislature” would be assisted by the Senate, during times of recess would become accustomed to operating without their help, resulting in “a council of state” that would “grow out of the principal officers” of the cabinet departments, which Cato regarded as “the most dangerous council in a free country.”
We often speak of the Constitution’s separation of power, but that’s something of a misnomer. It creates instead a system of separate institutions sharing powers, and this sharing of power deeply concerned anti-federalist writers for two reasons. First, it would allow for a greater consolidation of power into the federal government since those separate branches would be mutually interested in increasing their authority; and, second, it would accumulate more and more power into the executive as he inserted himself ever more deeply into the legislative process. By 1960, when Clinton Rossiter wrote his book on the presidency, he regarded the president as “Chief Legislator” of the US, and most Americans probably assume that the president has the authority to introduce bills into Congress (which he still does not).
The State Constitutions
Madison, referring to Montesquieu, argued that the British Constitution affirmed the partial involvement of the respective branches into one another’s powers, and that the principle of separation only meant that no mode of power (executive, legislative, or judicial) could wholly control one of the others. Madison buttressed his argument by again referring to state constitutions, observing that none of them allowed for a complete separation. Perhaps, but Cato countered with this warning: “You must, however, my countrymen, beware that the advocates of this new system do no deceive you, by a fallacious resemblance between it and your own state government, which you so much prize,” noting that the chief magistrate in the states was elected directly by the people and not indirectly via an “electoral college,” and that no chief magistrate had the power to make treaties or to command armies and navies and make war.
Still, Madison patiently referred to state constitutions, particularly that of New Hampshire, to buttress his argument. Like the state constitutions, and as Montesquieu insisted, Madison continued, good constitutionalism only prevented one branch from exercising the powers of another, not from participating in them.
Madison drew confidence from the fact the blending of powers flowed in every direction. Granted, the executive had a say in legislative affairs, but the legislature also exercised a great deal of influence over executive affairs, particularly in the appointment of executive officers. The appointment of justices, a blending of executive and legislative power, saw a counterbalance in the impeachment power, by which legislative and judicial power were blended. In some of the state constitutions, such as that of Pennsylvania and New Jersey, the executive was appointed by the legislature, and thus in many ways an extension of executive power. In Delaware, the executive was appointed by the legislature annually. This more closely resembled the Westminster system, current examples of which would be the relationship between parliament and prime minister, as in Canada and Great Britain.
Madison went on, attempting to throw deep on the Constitution’s critics, arguing that the federal government was actually an improvement upon the state constitutions in upholding the principle of keeping powers distinct from one another. No defender of the state constitutions on this vital point, Madison informed readers he was “fully aware that among the many excellent principles which they [state constitutions] 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.”
The debate between Publius and the Anti-federalists over the separation of powers proved one of enduring consequence. Contemporary readers will be struck by how the parties argued past one another, but that even if state constitutions did not evince the levels of separation the Anti-federalists indicated their suspicions about such blending at the federal level, and in particular what that would mean for the growth of executive power, now seem, as so much else, prescient.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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