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The
Federalist No. 51 (James Madison)
Primarily,
Federalist No. 51 addresses the system of checks and
balances in the United States republican form of government.
Following this analysis, Madison explains that a republican
government must protect "one part of the society against
the injustice of the other part." Madison recognizes
that the new government proposed under the Constitution
will render it difficult for so many parts, interests
and factions to unite in a majority that results in
a deprivation of rights of the minority. Madison felt
the best way to preserve civil and religious rights
was to establish a government that encourages diversity
of interest. In the case of religious freedom, the degree
of security for that freedom directly corresponds to
the multiplicity of sects. In addition, the vast size
of the United States also makes it more difficult for
members of any one sect to unite and form a majority.
The ends of society are justice and the common good.
By encouraging competition among the numerous religious
sects, Madison explains that it would be nearly impossible
for these sects to unite in any cause other than those
of justice and the common good.
RJ&L
Religious Institutions Group
The
Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
Independent
Journal, Wednesday, February 6, 1788.
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.
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 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 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. 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. 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 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.
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