Federalist paper #10, 47, 51 (Summary, Analysis, & Key Points) – Flashcards

James Madison begins this paper by telling his readers that he is going to examine a specific principle of republican government: "separation of powers." One of the principal objections to the constitution is that it violates this important principle. Its opponents claim that the three branches of government are not sufficiently separate and independent and that power is too unevenly distributed. It is feared that the new government will collapse, and that liberty will be threatened.

Madison agrees with those who place great importance on the separation of powers, especially on the point that an unequal division of power could result in the loss of liberty. If one branch has too much power, it does not matter how many men govern or how they obtain office. Too much power in one branch of government "is the very definition of tyranny." If these claims were true, Madison says that no other arguments would need oppose it. He, however, is convinced that this charge cannot be supported. How separate should each branch of government be?

Montesquieu, the French political writer, formulated this principle of government. He took the British constitution as his model, which he called "the mirror of political liberty." However, the most casual glance at that constitution reveals that the branches of the British government are far from totally separate or distinct. For example, the English king acts in a legislative capacity when he enters into treaties with foreign sovereigns: once treaties are signed they have the force of legislative acts. The English king not only appoints and removes judges; he frequently consults them. The judicial branch, then, acts in an advisory capacity to the executive branch. The legislative branch advises the king on constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial power. From these few facts, Madison infers that Montesquieu, when he wrote that "there can be no liberty where the legislative and executive powers are united in the same person . . . or, if the power of judging be not separated from the legislative and executive powers," did not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches.

Madison continues that if one looks at the state constitutions, there is no state in which the branches of government are absolutely separate and distinct. The state constitutions do not violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and neither does the United States Constitution.

In this essay, Madison clearly delineates his philosophy concerning separation of powers. Calling the accumulation of legislative, executive, and judicial power in the same hands - whether of one, of a few, or of many, and whether hereditary, self-appointed, or elective - the very definition of tyranny, Madison considers their separation essential to the preservation of liberty. He points out that when the legislative and executive powers are united 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. Furthermore, "were the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

This was not the only time that Madison had talked about the separation of powers. Before the first Congress, Madison said on June 17, 1789, that the principle of the separation of powers "is to be found in the political writings of the most celebrated civilians and is everywhere held as essential to the preservation of liberty . . . ; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation."

The authors of the Federalist took a rather cautious attitude toward legislative supremacy. In their desire to secure free government, they were in favor of a system of government under which the legislature would not be more important than the other branches of government. This led them to follow the classic exponent of the separation of powers, Montesquieu. The Frenchman provided the additional machinery that was necessary to make a reality of the ideal of a government of laws and not of men, combined with the Lockeian concept of free government and the sacrosancity of property.

James Madison begins his famous federalist paper by explaining that the purpose of this essay is to help the readers understand how the structure of the proposed government makes liberty possible. Each branch should be, in Madison's opinion, mostly independent. To assure such independence, no one branch should have too much power in selecting members of the other two branches. If this principle were strictly followed, it would mean that the citizens should select the president, the legislators, and the judges. But the framers recognized certain practical difficulties in making every office elective. In particular, the judicial branch would suffer because the average person is not aware of the qualifications judges should possess. Judges should have great ability, but also be free of political pressures. Since federal judges are appointed for life, their thinking will not be influenced by the president who appoints them, nor the senators whose consent the president will seek.

The members of each branch should not be too dependent on the members of the other two branches in the determination of their salaries. The best security against a gradual concentration of power in any one branch is to provide constitutional safeguards that would make such concentration difficult. The constitutional rights of all must check one man's personal interests and ambitions. We may not like to admit that men abuse power, but the very need for government itself proves they do: "if men were angels, no government would be necessary." Unfortunately, all men are imperfect, the rulers and the ruled. Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. The dependence of the government on the will of the people is undoubtedly the best control, but experience teaches that other controls are necessary.

Dividing power helps to check its growth in any one direction, but power cannot be divided absolutely equally. In the republican form of government, the legislative branch tends to be the most powerful. That is why the framers divided the Congress into two branches, the House of Representatives and the Senate, and provided for a different method of election in each branch. Further safeguards against legislative tyranny may be necessary.

In a representative democracy it is not only important to guard against the oppression of rulers, it is equally important to guard against the injustice which may be inflicted by certain citizens or groups. Majorities often threaten the rights of minorities. There are only two methods of avoiding evil. The first is to construct a powerful government, a "community will." Such a "will' is larger than, and independent of, the simple majority. This "solution" is dangerous because such a government might throw its power behind a group in society working against the public good. In our country, the authority to govern comes from the entire society. In addition, under the Constitution society is divided into many groups of people who hold different views and have different interests. This makes it very difficult for one group to dominate or threaten the minority groups.

Justice is the purpose of government and civil society. If government allows or encourages strong groups to combine together against the weak, liberty will be lost and anarchy will result. And the condition of anarchy tempts even strong individuals and groups to submit to any form of government, no matter how bad, which they hope will protect them as well as the weak.

Madison concludes that self-government flourishes in a large country containing many different groups. Some countries are too large for self-government, but the proposed plan modifies the federal principle enough to make self-government both possible and practical in the United States.

In this essay, Madison's thoughts on factionalism are delineated clearly. As we observed earlier, he assumed that conflicts of interests are inherent in human nature, and he recognized that, as a consequence, people fall into various groups. He wanted to avoid a situation in which any one group controlled the decisions of a society. Free elections and the majority principle protected the country from dictatorship, that is, the tyranny of a minority. However, he was equally concerned about the greater risk of tyranny of the majority. A central institutional issue for him was how to minimize this risk.

Madison's solution characteristically relied not only on formal institutions, which could be designed, but also on the particular sociological structure of American society, which he took as a fortunate starting point for the framers of the new constitution. The institutional component in his solution was checks and balances, so that there were multiple entry points into the government and multiple ways to offset the power that any one branch of the government might otherwise acquire over another. In this system, "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on each other."

These institutional arrangements were reinforced by the sociological fact that the Republic contained a multiplicity of interests that could, and did, offset one another: "While all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority." It is good that there are many group interests; that they be numerous is less important than that they be impermanent and shifting alliances whose components vary with the specific policy issue.

Madison commenced the statement of his theory in Federalist 51 with an acknowledgement that the "have nots" in any society are extremely likely to attack the "haves." Like Hamilton, the Virginian believed class struggle to be inseparable from politics. "It is of great importance in a republic not only to guard against the oppression of its rulers," Madison writes, "but to guard one part of the society against the injustice of the other. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest the rights of the minority will be insecure."

Madison, it is clear, had emancipated himself from the sterile dualistic view of society that was so common in the eighteenth century and that so obsessed Hamilton. Madison was one of the pioneers of "pluralism" in political thought. Where Hamilton saw the corporate spirit of the several states as poisonous to the union, Madison was aware that the preservation of the state governments could serve the cause of both liberty and union. Finally, the vastness of the United States, a fact that Hamilton considered the prime excuse for autocracy, was recognized by Madison as the surest preservative of liberty. To assert after reading this passage that Alexander Hamilton wrote Federalist 51 is to imply, first, that he was a magician in mimicking Madison's very words and tone of vote, and second that he was the most disingenuous hypocrite that ever wrote on politics. No unprejudiced or informed historian would accept this latter charge against Hamilton.

It is interesting to note that the Federalist papers are unique, as shown in this paper, because of the extreme amount of thought that was put into the design of the Constitution, as shown in Madison's original thought process that were penned in 51. Many, if not most, changes in institutional design, occur as the reactions of shortsighted people to what they perceive as more-or-less short-range needs. This is one reason the Constitutional Convention was a remarkable event. The Founding Fathers set out deliberately to design the form of government that would be most likely to bring about the long-range goals that they envisaged for the Republic. What is most unusual about Madison, in contrast to the other delegates, is the degree to which he thought about the principles behind the institutions he preferred. Not only did he practice the art of what nowadays is deemed institutional design, but he developed, as well, the outlines of a theory of institutional design that culminated in this essay.

-Outline the reasons for the ratification of the constitution -Outline necessity of a government that would be forced to compromise as a result of the separate powers of each branch -Argued that the proposed constitution did not need a separate bill of rights since the constitution had safeguards protecting individual rights

Written by Madison. Outlined the reasons for the ratification of the constitution

-"Tyranny of the majority" and said that factions were inevitable. -It made the claim that a republic would counter these factions. Said republic is defined as individual states that have a defined power relationship with a central government. -States that this federal system would keep factions formed in the states from taking control of the national government

Written by Madison. Made the argument that separation of powers and checks and balances should exist among the three branches of government

-explains that checks and balances protects each branch of government from becoming too powerful -this form also protects the country from invasion -without checks and balances and separation of power, citizens would face a loss of liberty

Written by Madison. Defines the relationship among the three branches of government as independent

to stay independent, no branch should have the total power to choose members of the other branches. -By creating a bicameral (two house) legislature, it protects the people from legislative tyranny -explains that each branch of government should be selected in different ways