combination of two of the departments against the third. If the
legislative authority, which possesses so many means of operating on the
motives of the other departments, should be able to gain to its interest
either of the others, or even one third of its members, the remaining
department could derive no advantage from its remedial provision. I do
not dwell, however, on this objection, because it may be thought to
be rather against the modification of the principle, than against the
principle itself.
In the next place, it may be considered as an objection inherent in the
principle, that as every appeal to the people would carry an implication
of some defect in the government, frequent appeals would, in a great
measure, deprive the government of that veneration which time bestows on
every thing, and without which perhaps the wisest and freest governments
would not possess the requisite stability. If it be true that all
governments rest on opinion, it is no less true that the strength of
opinion in each individual, and its practical influence on his conduct,
depend much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious when
left alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a double
effect. In a nation of philosophers, this consideration ought to be
disregarded. A reverence for the laws would be sufficiently inculcated
by the voice of an enlightened reason. But a nation of philosophers is
as little to be expected as the philosophical race of kings wished for
by Plato. And in every other nation, the most rational government
will not find it a superfluous advantage to have the prejudices of the
community on its side.
The danger of disturbing the public tranquillity by interesting too
strongly the public passions, is a still more serious objection against
a frequent reference of constitutional questions to the decision of
the whole society. Notwithstanding the success which has attended the
revisions of our established forms of government, and which does so much
honor to the virtue and intelligence of the people of America, it must
be confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed
the passions most unfriendly to order and concord; of an enthusiastic
confidence of the people in their patriotic leaders, which stifled
the ordinary diversity of opinions on great national questions; of a
universal ardor for new and opposite forms, produced by a universal
resentment and indignation against the ancient government; and whilst no
spirit of party connected with the changes to be made, or the abuses
to be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not present
any equivalent security against the danger which is apprehended.
But the greatest objection of all is, that the decisions which would
probably result from such appeals would not answer the purpose of
maintaining the constitutional equilibrium of the government. We have
seen that the tendency of republican governments is to an aggrandizement
of the legislative at the expense of the other departments. The appeals
to the people, therefore, would usually be made by the executive and
judiciary departments. But whether made by one side or the other,
would each side enjoy equal advantages on the trial? Let us view
their different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a small
part only of the people. The latter, by the mode of their appointment,
as well as by the nature and permanency of it, are too far removed
from the people to share much in their prepossessions. The former are
generally the objects of jealousy, and their administration is always
liable to be discolored and rendered unpopular. The members of the
legislative department, on the other hand, are numerous. They are
distributed and dwell among the people at large. Their connections of
blood, of friendship, and of acquaintance embrace a great proportion
of the most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that they are
more immediately the confidential guardians of the rights and liberties
of the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause
most successfully with the people. They would probably be constituted
themselves the judges. The same influence which had gained them an
election into the legislature, would gain them a seat in the convention.
If this should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on whom
every thing depends in such bodies. The convention, in short, would be
composed chiefly of men who had been, who actually were, or who expected
to be, members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them.
It might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be
in the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected
to turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with persons
of distinguished character and extensive influence in the community. It
would be pronounced by the very men who had been agents in, or opponents
of, the measures to which the decision would relate. The PASSIONS,
therefore, not the REASON, of the public would sit in judgment. But it
is the reason, alone, of the public, that ought to control and regulate
the government. The passions ought to be controlled and regulated by the
government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.
PUBLIUS
FEDERALIST No. 50
Periodical Appeals to the People Considered
From the New York Packet. Tuesday, February 5, 1788.
MADISON
To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to
the people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION.
It will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for ENFORCING the Constitution,
by keeping the several departments of power within their due bounds,
without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed
periods appear to be nearly as ineligible as appeals on particular
occasions as they emerge. If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of
recent date, and will be connected with all the circumstances which
tend to vitiate and pervert the result of occasional revisions. If the
periods be distant from each other, the same remark will be applicable
to all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage is
inseparable from inconveniences which seem to counterbalance it. In the
first place, a distant prospect of public censure would be a very feeble
restraint on power from those excesses to which it might be urged by
the force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent
on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the
future distance of ten, fifteen, or twenty years? In the next place, the
abuses would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where this
might not be the case, they would be of long standing, would have taken
deep root, and would not easily be extirpated.
The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried
in one of the States. One of the objects of the Council of Censors which
met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,
"whether the constitution had been violated, and whether the legislative
and executive departments had encroached upon each other." This
important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as
a single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the case
under consideration, it involves some facts, which I venture to remark,
as a complete and satisfactory illustration of the reasoning which I
have employed.
First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active members had also been
active and leading characters in the parties which pre-existed in the
State.
Second. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.
Third. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had
this not been the case, the face of their proceedings exhibits a
proof equally satisfactory. In all questions, however unimportant
in themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a variety
of distinct questions, they inevitably fall into different opinions
on some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourth. It is at least problematical, whether the decisions of this body
do not, in several instances, misconstrue the limits prescribed for the
legislative and executive departments, instead of reducing and limiting
them within their constitutional places.
Fifth. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed,
have had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.
This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of party.
Is it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State,
at the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction
of parties necessarily implies either a universal alarm for the public
safety, or an absolute extinction of liberty.
Were the precaution taken of excluding from the assemblies elected by
the people, to revise the preceding administration of the government,
all persons who should have been concerned with the government within
the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would
in other respects be little better qualified. Although they might not
have been personally concerned in the administration, and therefore not
immediately agents in the measures to be examined, they would probably
have been involved in the parties connected with these measures, and
have been elected under their auspices.
PUBLIUS
FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments.
For the Independent Journal. Wednesday, February 6, 1788.
MADISON
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 may
be 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 the
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.