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Usually: argument (133) · detachment (56) · skepticism (42) · exhortation (28) · censure (13) · indignation (12) · commentary or gloss (8) · injustice endured (8) · curiosity (8) · crisis of belief (6)
“For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” Thomas Paine, Common Sense · precept
“The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible;” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · precept
“Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“The PASSIONS, therefore, not the REASON, of the public would sit in judgment.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“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.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · precept
“In America the President cannot prevent any law from being passed, nor can he evade the obligation of enforcing it.” Alexis de Tocqueville, Democracy in America — Volume 1 · observation
“Were it necessary to verify this experience by particular proofs, they might be multiplied without end.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
Madison continues by describing how republican liberty demands frequent elections and independent officeholders, while stability requires longer terms, creating a central design tension the convention had to resolve.
it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foun…
In Federalist No. XLI’s continuation, Madison outlines two questions about the Constitution: whether the federal powers transferred are unnecessary or dangerous, and how the government’s structure distributes those powers among branches.
To the People of the State of New York: The Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the s…
Madison argues that tyranny results from concentrating legislative, executive, and judicial power in the same hands, but that the Constitution avoids the “misconceived” version of the separation maxim attributed to Montesquieu.
parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Wer…
He explains Montesquieu’s meaning: liberty is endangered only when one body exercises the whole legislative, executive, or judicial power, while partial influence and appointments can still exist without subverting free government.
“Were the power of judging joined with the legislative, the life and liberty of the subject 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. “ Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meanin…
Madison surveys state constitutions—New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, and others—showing that Americans never achieved absolute separation, yet the proposed federal plan still respects the proper limits.
and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compile…
He continues the state-by-state review (including South Carolina and Georgia) and concludes that mixing has often been excessive or poorly maintained in practice, but that the Anti-Federalist charge misunderstands the maxim.
of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to …
In Federalist No. 48, Madison argues that separation must include enough constitutional connection so each department can control the others; mere “parchment barriers” fail against encroachment, especially legislative usurpations.
they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers again…
Madison claims legislative power grows because it masks encroachments, accesses public money, and gains influence over other departments; he supports this with Virginia’s experience as described by Thomas Jefferson and Pennsylvania’s Council of Censors.
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 this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person sho…
He argues that Pennsylvania’s constitution was flagrantly violated in lawmaking, jury trials, judicial matters, salaries, and executive powers, and that repeated breaches show parchment separation cannot prevent tyrannical concentration.
chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within le…
Hamilton argues that when legislative party insiders judge constitutional disputes through conventions or similar bodies, public judgment is driven by passions and partisan influence, not the true merits of the constitutional question.
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 le…
Continuing the Pennsylvania example, Hamilton lists how the Council of Censors was split into fixed violent parties, may have misconstrued department limits, and had little practical effect on legislative practice, implying the remedy fails under party politics.
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. Thirdly. 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 …
Hamilton argues that because external constitutional declarations and restraints are inadequate, the federal government must be structured with internal checks and balances—using rival interests, ambition counteracting ambition, and division of powers.
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 s…
Hamilton develops the theory that in human government, self-control requires auxiliary precautions: legislative predominance must be offset by dividing the legislature, and executive power must be fortified—especially through qualified means rather than relying on an absolute veto.
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 …
Madison argues that Virginia was first to resist Britain and to adopt independence, then claims that biennial House elections cannot endanger liberty because the federal legislature has limited power and will be watched by other institutions.
frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those …
Hamilton continues by contrasting the Revolution-era Congress with a feared-capture future, then argues that dangers from other federal branches are limited by officeholding rules and the logic of responsible republican checks.
appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to…
Hamilton argues the Supreme Court would be a poor substitute for the Senate in impeachment trials because impeachment requires large discretionary authority, lacks jury separation, and involves an additional sentence of political disgrace followed by ordinary-law prosecution.
be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as…
Hamilton reviews objections to the Senate as impeachment court, rejecting the claim of unlawful fusion of powers, and answers that New York already concentrates impeachment and final judicial authority in its Senate, undermining the criticism.
the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the…
He insists the executive must not be subservient to popular impulses or dependent on the legislature, since true separation requires each branch to remain independent rather than nominally separated.
of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes s…
Hamilton argues that a four-year executive term may not fully guarantee independence but it materially strengthens executive character, while not threatening liberty, because legislative and constitutional checks remain possible.
for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character o…
In Federalist No. 73, Hamilton says executive energy requires secure support: if the legislature controls presidential pay, it can coerce or seduce him, so compensation must be fixed for the presidential term.
always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infe…
He defends the presidential qualified veto as a constitutional self-defense against legislative absorption, arguing it both protects executive authority and helps prevent passage of faction-driven or harmful laws.
examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that “The President of the United States shall, at stated times, receiv…
Hamilton argues that giving the Executive a qualified veto protects the community against faction, haste, and bad legislation by letting the legislature be checked when it is not infallible.
calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be en…
He adds that the Executive’s negative would be used cautiously because the legislature is dominant, using a British king as a contrast, and argues it is better than legislating through mutability.
system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with…
The paper proposes a qualified negative instead of an absolute veto: the Executive returns laws for reconsideration, and only if more than one third of each house joins can the objections be finally rejected; it may act as a restraint even when unused.
an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative bod…
Hamilton defends the Constitution’s grant of commander-in-chief authority and presidential power to grant reprieves and pardons, arguing that divided bodies are less scrupulous and that quick clemency can end rebellions.
From the New York Packet. Tuesday, March 25, 1788. HAMILTON To the People of the State of New York: The President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the pre…
Hamilton argues that requiring two-thirds of senators present for treaty approval, with the President acting with Senate advice, is best: treaties are contracts grounded in good faith, so both executive expertise and legislative participation are needed.
The President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic…
Hamilton argues against involving the House of Representatives in treaty-making because it is too large and variable for secrecy, knowledge, and responsiveness, and he defends using senators present rather than the full Senate.
filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, tak…
In Federalist No. LXXVI, Hamilton praises the Constitution’s appointment system—president nominates and Senate advises, with recess appointments for vacancies—arguing that one responsible person better selects officials than a collective body.
a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the c…
The author argues that presidential nomination paired with Senate approval is better than presidential appointment alone because nomination limits party bargaining and reduces unmerited choices for office.
usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been …
He explains that Senate rejection of a president’s nomination is unlikely to be frequent, yet the Senate’s concurrence still functions as a silent check against favoritism and instability in appointments.
case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not …
Hamilton argues that Senate consent makes administration more stable across presidential changes and rejects the claim that Senate participation unduly empowers the president.
To the People of the State of New York: It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution i…
He contrasts appointment versus nomination and says the legislature can restrain the president only by obstructing his nominations, while bad nominations draw blame to the president and bad rejections to the Senate.
that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner …
Hamilton transitions to the judiciary, defending federal judges serving during good behavior, arguing judicial independence protects liberty and that courts must prefer the Constitution over statutes.
We proceed now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being rel…
He continues that permanent judicial independence limits harms from unjust or partial laws, checks legislative injustice, and that temporary commissions would make judges overly compliant to executive, legislative, or popular pressure.
of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the i…
Hamilton defends a Supreme Court as a distinct, final tribunal rather than a legislative branch, rejecting claims that its spirit-of-the-constitution interpretation would be unprecedented, uncontrollable, and beyond remedy.
To the People of the State of New York: Let us now return to the partition of the judiciary authority between different courts, and their relations to each other, “The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”[1] That there ought to be one court of supreme and …
Hamilton argues against a Supreme Court made up as a part of the legislature, claiming it would nearly violate separation of powers, fail to moderate bad laws, and risk faction and defective legal knowledge, so states should use independent judicial bodies.
the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legisl…
He responds that legislatures cannot legally reverse judicial sentences but may set new rules for future cases, and he argues that judiciary encroachments are a phantom due to judicial weakness and impeachment checks, supporting the Senate as an impeachment tribunal.
constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any othe…
He argues that state courts retain their existing jurisdiction unless the Constitution removes it, and he interprets the judiciary clause to allow concurrent state jurisdiction over federal causes with Supreme Court appellate review.
the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR …
He claims that Montesquieu’s argument for small republics actually points toward confederate republics, rejects splitting states into many jealous commonwealths, and uses modern concepts like separated powers to strengthen liberty.
sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina,…
Madison answers objections that a large republic cannot govern, distinguishing republic from democracy, arguing representation permits wide extension, and defending the constitution’s limited federal jurisdiction.
To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to o…
Hamilton addresses the objection that the Constitution allows standing armies in peacetime, arguing the plan keeps army-raising in the legislature and limits military funding to two years, making abuse unlikely.
To the People of the State of New York: TO THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on we…
Hamilton argues that constitutional restraints on the legislature’s discretion over standing armies would be impractical, allow evasion, and enable executive-legislative usurpation under alleged threats.
government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is t…
In Federalist No. 26, Hamilton addresses New York, arguing that restraining legislative power for defense is a liberty zealotry that produces safer government energy instead of anarchy.
system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thu…
Hamilton traces the idea of limiting standing armies to England, citing Charles II’s 5,000 troops, James II’s 30,000 troops, and the 1688 Bill of Rights requiring parliamentary consent.
the Bill of Rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law." In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. T…
He argues that state rules saying standing armies should not be kept up without legislative consent are ambiguous or unnecessary, and that the Constitution’s two-year funding restriction is more effective.
to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The forme…
Hamilton claims a scheme to subvert liberty by gradually enlarging an army would require long, complex conspiracies that representatives and the public would detect, making it implausible.
of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person. If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colo…
In Federalist No. 27, Hamilton argues the proposed Constitution needs no special extra military force to execute laws, because federal authority will be better administered and more trusted.
To the People of the State of New York: IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As f…
Madison argues that dividing authority between general and state governments is extremely difficult because political concepts and legal boundaries resist precise definitions, often requiring practice to clarify meaning.
part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and dis…
He adds that persistent disputes over dividing powers reflect complexities of language, human cognition, and competing state interests, concluding it is astonishing the convention achieved unanimity despite these pressures.
the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws an…
Madison argues in Federalist No. 48 that separation must be “so far” connected that each department has constitutional control over the others, since mere parchment boundaries fail and the legislative branch tends to expand.
give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. 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 the other departments. It is equally evident, that none of them ought to possess, …
He continues No. 48, explaining why legislatures encroach more easily through complex measures and control of funding and appointments, then cites Virginia under Jefferson and Pennsylvania’s Council of Censors as evidence.
its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, …
Madison details alleged Pennsylvania constitutional violations—printed bills, jury trial, judicial jurisdiction—under the legislature, and describes why Pennsylvania’s executive structure blended legislative-like collective responsibility.
in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his…
Madison argues that fixed or periodic appeals to the people are not reliable constitutional enforcement, describing why both distant and near-term censures fail, and noting Pennsylvania’s Council of Censors as a test case.
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 pa…
He describes Pennsylvania’s 1783–1784 Council of Censors as politically partisan—members were active officeholders—so passion dominated decisions, possibly misreading constitutional limits and proving the “censorial remedy” ineffective.
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 ac…
In Federalist No. 51, Madison explains that exterior constitutional checks are inadequate, so government must be structured internally so departments, by mutual relations, keep each other within their bounds.
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 …
Madison argues that the great security against power concentration is giving each department motives and constitutional means to resist encroachments, and explains how divided legislatures and an executive check can defend liberty.
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…
Hamilton argues that enlarging the executive with a council is “dangerous than friendly” to liberty because small numbers can be secretly combined by an artful leader, citing Rome’s decemvirs.
should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is unattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than …
Hamilton explains that longer executive tenure increases personal firmness and administrative stability, while warning that short terms make the chief magistrate too uninvested to resist popular passions or legislative hostility.
To the People of the State of New York: DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be e…
Continuing the argument, Hamilton says executive independence fails if the executive and judiciary depend absolutely on the legislature, and that shorter terms weaken independence by lowering the magistrate’s incentives.
of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes s…
Hamilton defends four-year tenure as insufficient to threaten liberty but enough to build firmness and public confidence, comparing it with Britain’s House of Commons reducing monarchy power through long legislative momentum.
for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character o…