Separation of Powers and the Prevention of the Spawning of Tyrannical Government
James Madison, having gone through numerous arguments in his essays compiled into the Federalist Papers regarding the need for a centralization of power into a national government, also takes care to efficiently explain how such power is to be delegated and split amongst the new government’s branches. In Federalist No. 47, Madison finds himself in agreement with some of the principal objections of his opponents to the new Constitution. Specifically, regarding the departments of the new government (of which the objectors argued needed to be separate and distinct), Madison concedes that “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” His arguments provide perhaps one of the most brilliant cases for why liberty can only be truly protected from tyranny if power is divided amongst those who have the authority to exercise it.
The prevention of tyranny, as Madison delineated in his perspective on the partitioning of power in government, was the issue concern upon which both he and his opponents could find common ground. However, the degree to which the branches were to be separate and distinct from one another (per the objectors’ demands) was debatable. Citing Montesquieu and drawing from the language taken from the state constitutions, Madison argued that the ideal separation of powers upon which his opponents’ were advocating was not essentially founded in reality. Specifically, Madison argued in Federalist 47 that in republican governments, which was already being practiced in the states and the British governmental model that Montesquieu had cited as the “mirror of political liberty”, their branches are never completely separate from one another. In the British model, according to Madison, “The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which when made, have under certain limitations, the force of legislative acts….The judges again are so far connected with the legislative department, as often to attend and participate in its deliberation, though not admitted to a legislative vote.”
Madison continued to draw correlations between the British model and the models currently practiced by the states. The constitution of New York, for example, gave the executive branch minimal control over the legislative and judicial departments, with the legislative branch associating itself with the executive in the act of appointing officers to both the judiciary and executive departments. The constitution of North Carolina also gave power to the legislative branch to appoint the chief magistrate of the executive branch and its officers as well as officers within the judiciary department. In analyzing the constitutions of the states, Madison not only pointed out the utter fantasy of his opponents’ objections in advocating for complete separation of powers but also emphasized Montesquieu’s points why these branches needed to hold some partial agency over each other in order to maintain a checked and balanced system of government.
For Montesquieu, tyranny arises when power is completely centralized in the hands of one department when it exercises ad complementum the duties specifically delegated to another department (e.g. if the executive was both the maker and the executor of laws). As Madison summarized of Montesquieu’s principle theory, “‘When the legislative and executive powers are united in the same person or body…there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’” This, as Madison posited, exemplified the principal nature of tyrannical government as he saw it, which then posited a need for a separation of powers but not to the idealistic degree of complete and total separation that his critics were advocating for. “Checked and balanced” power implies the need for a partial mixture of powers, albeit without total centralization of two different kinds of authority in one department.
As Madison argues in Federalist No. 48, “It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an over-ruling influence over the others in the administration.” Madison here is clearly emphasizing the nature of the branches of government described in the Constitution by not allowing one branch to supersede another nor allow one branch to circumvent the delegated authorities of another, though these authorities may hold some form of minimal influence on each other.
Tyranny, by its design, could arise from any of the branches of government and was not exclusive to executive tyranny. In fact, Madison makes a point in referring to the dangers that could arise if all power was centralized into the legislative authority, which would put its potential tyranny in the same league as the dangers associated with a hereditary magistrate or monarch. In fact, Madison viewed the legislature as less susceptible to limits, and could with greater facility, create complex measures to hide encroachments it could make on the powers of other branches of government. Because each branch holds the potential to usurp the powers of the other, it was imperative that their interests be leveled against each other in the administration of government, delegitimizing the idea that they should be completely independent of each other albeit keeping each of the branches sovereign in their own right. As analyst Jim Powell summarized Madison’s logic, “A key principle (for Madison) was separation of powers…The two houses of Congress provide a check on each other. The President can veto legislation, but he can be overruled by a two-thirds majority in both houses. The judiciary can strike down laws considered unconstitutional (Note: Powell’s point on Madison’s views of the powers of the court is debatable).”
By establishing a means for each branch to check and restrain the authorities of one another (not usurp), the chances for tyrannical rule become less likely. Powell, in his summarization of Madison’s logic, was explicitly drawing from passages taken from Federalist No. 51, where Madison posits that the great form of security against any concentration of power in a single branch of government was to administer to each branch the means of resisting the attempted usurpations of the other.
Madison himself recognized the perpetual state of humanity that holds sway over the nature of power. In Federalist No. 48, Madison posited that “It will not be denied that power is of an encroaching nature, and that it ought to be effectively restrained from passing the limits, assigned to it.” Madison likened government as the greatest reflection on human nature. So, it followed, that if men were to be entrusted with the governance of other men, it would be imperative that a model of government be generated so as to control the passions of the governed while subsequently controlling itself. In fact, Madison was so distrusting of the national government (as governed by human nature) to faithfully adhere to the demarcations of boundaries on the federal government written in the Constitution that he advocated a state of governance in which “…the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
For Madison, the people themselves were to be the original authority, which republican theory mandates should be the default reference for how the operations of government were to be established. Whenever a branch of government oversteps their boundaries, they should be ineffective, because the other branches will not legitimize such an encroachment or see it as valid, according to Madison’s logic.
It is for this reason why Madison stipulated that such deliberation on the powers of government be resolved amongst the governed populace, whom Madison rightfully titles as the “granters of the commission”. There can be no unification of the government, lest liberty be constantly under the threat of usurpation. The power surrendered by the people necessitates an initiative to divide it in the republican government, and in their respective departments divide it even further so that all avenues potentially exploitable by tyranny be closed off. As Madison writes in Federalist No. 51, “In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments (the state and the federal government), and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.” Even the legislature, being one of the principal branches where usurpations of power could be realized, necessitated for Madison a division within itself into two branches, where modes of election and principles of action between the legislative houses would differ in order to further prevent potential encroachments.
Astoundingly, Madison even transfers the doctrine of separations of powers to the populace where such power is originally derived. While highlighting that the national government’s power would come directly from the people, he argued that the society itself would be divided significantly amidst a multiplicity of interests, classes and parts so that the rights of those in a minority faction wouldn’t be so easily subjugated by the will of a prospective majority faction.
Usurpations of power exist at all levels of government, including the state and societal levels. These usurpations are breeding grounds for tyranny, and the only way to curb ambition is to check it with ambition, such that liberty is preserved and tyranny of any form will be restrained.
Concentration of power is incredibly dangerous, and Madison brilliantly outlined a compelling formula by which powers would always be clashing with one another and in effect would preserve American liberty from any form of majority faction or usurping authority. Madison aligns himself with the view of human nature that sees the pursuit of power as organic to that nature. The passions of humanity are extremely influential and prejudiced in some form or another, which makes it imperative that such passions are regulated through checks and balances such that the reason of the public becomes the only regulator of government, and perhaps the regulator of society itself.
Tyranny takes many forms, and Madison recognized this in his vision of a Constitutional government that is so complex in its checks and balances that tyranny will never be given the opportunity to spawn effectively. As Madison stated himself, “The different governments will control each other; at the same time that each will be controlled by itself. Liberty is precious and sacred, and Madison’s arguments that properly augmented the doctrine of “Separation of Powers” were pivotal to preserving American liberty against tyranny’s cunning devices. Without such arguments, it can be speculated whether or not we would be able to maintain today the checked and balanced government he envisioned if he did not correct his critics’ understanding of separation of powers.
Madison, James. Federalist No. 47, in The Federalist. Edited by Jack Rakove. New York: Literary Classics of the United States, 1999.
Madison, James. Federalist No. 48, in The Federalist. Edited by Jack Rakove. New York: Literary Classics of the United States, 1999.
Powell, Jim. “James Madison- Checks and Balances to Limit Government Power”. Foundation for Economic Education. March 1, 1999. Accessed February 20, 2018. https://fee.org/articles/james-madison-checks-and-balances-to-limit-government-power/
Madison, James. Federalist No. 49, in The Federalist. Edited by Jack Rakove. New York: Literary Classics of the United States, 1999.
Madison, James. Federalist No. 51, in The Federalist. Edited by Jack Rakove. New York: Literary Classics of the United States, 1999.