Federalist 48
48 essays into The Federalist, and we still haven’t mentioned the name of John Adams, one of the more polarizing figures of the era. Adams’ role during the revolutionary period is generally better known: defender of the soldiers who fired the shots during the Boston Massacre; one of the main architects of American independence and nearly a co-author of The Declaration of Independence; advocate for colonial rights who wrote compellingly about self-government. He helped secure foreign support for the colonist’s war effort.
Adams’ actions during the constitutional period are less well-known. In 1780 he drafted the Massachusetts constitution which became in many ways the model for the US one; although not an attendee at the Constitutional Convention he influenced it from afar; often accused of being a closet monarchist, he advocated for a stronger central government and for greater executive power.
A letter he wrote to George Wythe (the great Virginia lawyer) in 1776 became in many ways the background text for constitutional debates. Published by Richard Henry Lee as “Thoughts on Government,” Adams outlined the case for the tri-partite division of power. Adams prefaced his essay by acknowledging that a republican form of government was superior to others but that republicanism rested on the foundation of virtue. “The noblest and most generous affections in our nature, then, have the fairest chance to support the noblest and most generous models of government.”
A second premise he offered concerning republicanism is that “it is an empire of laws, and not of men.” Government must seek fair and impartial rules and an exact and consistent execution of them. The central question, Adams argued, was how to create good laws, especially since virtue, most notably among politicians, proved so inconstant. This would prove especially difficult “in a large society, inhabiting an extensive country,” clearly the goal Adams was pursuing. The main solution, he argued, was to “depute power from the many to a few of the most wise and good.” Nice in theory, but hard to execute in practice.
Representation and Republicanism
We deal here with problems of representation, especially since Adams was advocating for a national government. How do we assure we end up with “the wise and good”? What qualifications should representatives have? What qualifications should the people who select them have? What methods should be used to make these selections? Since representation is the key element of any republican system, greatest attention should be paid to the most representative branch of government – meaning the legislature. The system of checks and balances becomes especially important as regards the legislature, for “a single assembly is liable to all the vices, follies, and frailties of an individual” with all his passions and prejudices. The fact that the legislature is the most popular body of government shouldn’t blind us to its tendency to abuse power.
Adams in the letter continued to identify the different functions of government: legislative, executive, and judicial, and discussed not only the the legislature’s lack of competnecy to exercise powers other than legislative ones, but how such exercise would inevitably lead to tyranny. One solution Adams proposed was to create “a distinct assembly,” independent of the popular and executive branches, that would mediate between the two – thus creating the template for the Senate. About which more later. For the record, Adams also argued the executive, as well as all legislators, ought to be elected annually. Thus a sound constitution would result in a good society.
“A Constitution, founded on these principles, introduces knowledge among the People, and inspires them with a conscious dignity, becoming Freemen. A general emulation takes place, which causes good humour, sociability, good manners, and good morals to be general. That elevation of sentiment, inspired by such a government, makes the common people brave and enterprizing. That ambition which is inspired by it makes them sober, industrious and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business—some politeness, but more civility. If you compare such a country with the regions of domination, whether Monarchial or Aristocratical, you will fancy yourself in Arcadia or Elisium.”
Anti-federalists concerns about blending power
Why the digression into Adams’s essay? It clearly influenced the creation of the Constitution as well as the defense of it, but also became a target for the Constitution’s critics, many of whom harped on the difference between theory and practice. Critics asked for a single historical example of Adams’ preferred model actually working. Furthermore, so complicated a system would leave citizens feeling adrift, the lack of transparency undermining the republican experiment it meant to express. “I am fearful,” wrote Centinel in his first letter, “that the principles of government inculcated in Mr. Adams’s treatise, and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.” Without close and constant connection between representatives and citizens, he continued, republicanism would certainly fail, and this meant that politics had to operate on a smaller, local scale where people and their representatives would have constant interaction with each other.
Nor were the critics comforted by the blending of power among the three branches. The author of the “William Penn” essays wrote that liberty “can only subsist, where the powers of government are properly divided, and where the different jurisdictions are inviolably kept distinct and separate.” One can only imagine what these thinkers would think of the prodigious use of executive orders, for concerning legislative and executive power “these two should never be suffered to have the least share of each others jurisdiction, or to intermeddle with it in any manner.” The report of the Pennsylvania Minority detailed the dangers inherent in “the undue and dangerous mixture of the powers of government,” a mixture “inconsistent with all freedom.”
Madison had already addressed these arguments in Federalist 47, but in 48 he pushed the argument in new and daring direction. Repeating his argument that sound government required a blending of power he raised two important and related matters: which branch of government is most likely to expand or abuse its power, and how might such abuses best be handled? 48 focused mainly on the first question, but also indicated how Madison would approach the second one.
Legislative Tyrranny
As to the first question, Madison, in no small part as a result from his experience in the Virginia legislature, clearly believed that the legislative branch, the 800-pound gorilla in the system, was most to be feared. “The legislative department is every where extending its sphere of its activity, and drawing all power into its impetuous vortex.” The anti-federalists with their emphasis on popular representation, Madison believed, neglected the danger that the legislative branch posed to good government. Quoting Jefferson’s Notes on Virginia, Madison noted that “’one hundred and seventy-three despots would surely be as oppressive as one.’”
Referring to the “ill constituted government” of Pennsylvania, Madison argued that in that system the power were too separated with the result that the judicial and executive branches were too dependent on the legislature. The result was not only a kind of legislative tyranny but a horribly unstable government. The executive and judiciary had much to fear from the legislature while the legislature had nothing to fear from them. The only solution was to increasingly blend the powers to allow the executive and judiciary to operate as makeweights to legislative power.
But … doesn’t the Constitution in clearly delineating legislative power and in assigning power specifically to the different branches obviate the danger of legislative tyranny? Doesn’t Article I section 8’s enumeration of power sufficiently rein in the legislature? This is where Madison’s argument gets especially interesting, for he argues that a written constitution is on its own merits of little use against the usurpations of power. Like football players running through a paper banner at the start of a game, so too power-hungry people in government won’t let the written word keep their ambition in check. The Constitution is a mere “parchment barrier,” of little use against designing men or bodies of men.
“The conclusion that I am warranted in drawing from these observations is, that a mere demarkation [sic] on parchment of the constitutional limits of the several departments, is not a sufficient guard against the encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Americans largely created the idea of a written constitution, and while the idea is consistent with an emphasis on the rule of law, time and experience have demonstrated that the meaning of the text can be so open to intepretation that those words are barely a speedbump on the road to accumulated power. The Constitution, being a mere “parchment” barrier to power, could create the system of shared power but couldn’t by itself make it work. Designing men would figure out ways around its restrictions. What remained for Madison was to spell out exactly how the constitutional system could guard against tyranny, for the text of the Constitution itself provided flimsy guardrails. He turned his attention to this problem in subsequent essays.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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