The Federalist No. 51

Necessity and Character of Checks and Balances as Brake on Internal Usurpation of Power

Summary (not in original)

As all exterior forces fail, a structural solution must be found to keep separated departments in their place.  In a perfect world no department would appoint members of another, relying upon popular elections for all; this is impractical for various reasons, particularly in the judiciary, which requires specialized knowledge and life terms.  Pay should also be independent.  The greatest security is constitutional checks—ambition met with ambition—in the form of self-regulation through opposing of rival interests.  There are two houses of Congress created on different terms, and qualified veto by the executive (see next for list).  Two other thoughts.  In our compound republic, double security obtains from division among sovereign units and thence each sovereign unit structured with separated powers.  Society must also protect minorities against repressive majorities.  In a country as large and diverse as the United States, dominate majority factions are unlikely to form, except by coalitions serving the public good, thereby obviating any independent central force for controlling them.

Not given in Federalist 51 are the various interconnections that operate as checks within the Constitution.  They are:

1.  Two Houses of Congress, one with two-year terms, one with six-year terms, proportioned and elected differently, the one by the people, the other by the states.

2.  Impeachment of any federal officer is brought and tried by the Congress, not the Judiciary.

3.  Money bills must originate in the House.

4.  Only the Congress can borrow money; only the executive branch can spend it.

5.  The Congress decides on the structure of the inferior federal court system, including its jurisdictions.

6.  The President has a qualified veto over new laws passed by Congress, one which the Congress may override by 2/3 vote.

7.  The President is commander-in-chief, but the Congress has the power to declare war, controls the militia and navies, and has power of the purse. 

8.  Treaties are made by the President but must be confirmed by 3/4 vote of Senate.

9.  Key executive appointments must be approved by the Senate.

10.  The Vice President has a deciding vote should the Senate be tied (recognizing that the Senate will always have an even number of potential votes).

11.  The President appoints the Supreme Court and all inferior federal court justices with Senate confirmation.

12.  The Supreme Court may judge a law passed by the Congress void by conflict with the Constitution (not explicit, but put into practice as judicial review, and according to Federalist 78, entailed by the Supremacy clause).

13.  Pay for Congress and the President may not be changed during terms of office, and pay for Supreme Court justices may not be reduced during terms of office.

Independent Journal
Wednesday, February 6, 1788
James Madison

To the People of the State of New York:

As all exterior forces fail, a structural solution must be found to keep separated department in their places.

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 a pure separation of powers, no members of any department would be appointed by another.   This would mean popular elections for all.  However, at least in the case of the judiciary, the demands of assuring the highest quality jurists and their tenure for life suggests an alternative, particularly as life tenure separates jurists from their sponsor quickly.

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.

Emoluments should also be as independent as possible of other departments.

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 greatest check on encroachments is constitutional means to resist them.  Such means must be commensurate with the prospective manner and power of encroachments, assuming that ambition will always seek increase, and ambition must be met with ambition.  Government reflect human nature.  Government must first regulate the governed, than regulate itself.  The people as primary controls are necessary but insufficient.

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.

The policy of opposing rival interests to compensate for the want of higher motives suffuses all human endeavors, public and private.

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.

As the departments are not equal in power, they are not susceptible to equal power so self-defense.  The legislature is divided into two parts, with different modes of election, terms, and specific responsibilities.  An absolute executive veto might not be entirely safe nor entirely sufficient, but might be rendered more effective if qualified, providing some inducement to the legislature to respect executive rights.

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 inconvenience 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 these principals are just, but found not entirely practiced in the federal constitution, the states are far less perfect in their correspondence.

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.

Two more thoughts.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

In our compound republic, power is first divided between federal and state sovereignties, and then divided again within each between three separated departments, providing a double security.

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.

A society not only must protect itself against its rulers, it must protect its minority interests from majority oppression.  There are two ways: a single independent force; or dividing the society into so many different parts that a repressive majority is unlikely or impotent.[1]

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. 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. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. 

The first method prevails in a hereditary or self-appointed single authority, which may or may not defend the rights of a minority.

The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. 

The federal republic of the United States exemplifies the second alternative, itself broken into so many parts, interests, and classes that individual or minority rights will be little endangered.  This security is fostered by our territorial expanse and large population.  Smaller territories reduce this form of security and increase the need for more autocratic powers in proportion.

The second method will be exemplified in the federal republic of the United States. Whilst 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. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. 

Justice is the end of government, to be pursued until obtained or liberty lost.  Persistent repression by a majority is equivalent to anarchy, a state eventually so undesirable to the majority that it will accede to governance that protects all.  

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. 

If Rhode Island decides against joining the union, it will devolve into such oppression from majorities that majorities themselves will empower a separate and singular force of control.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. 

In a republic as extensive and diverse as the United States, a coalition comprising a majority will seldom arise on ideas other than justice and the public good, minimizing the need for independent intervention, and hence the greater the possibility

 of self-government.

In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.

PUBLIUS


[1]This is a single long paragraph in the original, extending the end of the essay.  However, it is a very dense and rather convoluted paragraph with matters of some importance, calling for some division when installing paragraph headings.  This is the only instance of such a procedure in this edition.