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Historyplex

Summary and Analysis of James Madison’s Federalist No. 51

Federalist No. 51 advocates the balance of power in the US government by the principle of 'checks and balances'. For better understanding, this Historyplex post gives you the summary of Federalist No. 51, as well as the analysis of its main points.

Federalist No. 51 advocates the balance of power in the US government by the principle of ‘checks and balances’. For better understanding, this Historyplex post gives you the summary of Federalist No. 51, as well as the analysis of its main points.

Did You Know?

The identity of the authors of the Federalist Papers was kept a secret. James Madison published his essays using the name ‘Publius’.

Federalist No. 51 was an essay published by American politician and statesman, James Madison, on February 6, 1788. It was the fifty-first paper in a series of 85 articles that are collectively known as the Federalist Papers. These articles were aimed at modifying public opinion in favor of ratifying the new US Constitution.

These papers had several authors besides Madison, like Alexander Hamilton and John Jay, who were all federalists, giving the essays their name. Despite the contributions of these authors, James Madison alone was given the most credit for publishing these papers. His fame increased after he became President, and was later given the title of ‘Father of the American Constitution.’ On the other hand, a group of people called the anti-federalists campaigned against the new constitution, believing that it would lead to a corrupt government. Finally, the federalists won, and the new constitution was ratified on June 21, 1788.

Federalist No. 51 tries to explain how the new constitution will prevent departments of the government from intruding into each others’ domains, besides giving citizens the power to prevent their elected representatives from abusing their powers. It believes in the system of ‘checks and balances’, in which the government is divided into different departments which have conflicting powers that balance out each other. What is really interesting in this essay is the detailed analysis of various institutions, which is known today as ‘the theory of institutional design.’ Federalist No. 51 also gives an explanation about how the rights of minorities will be protected by the constitution. Here are the main points of this essay.

Summary of Federalist No. 51

In the essay, James Madison says that there is a need to partition power amongst the various departments of the government as the US Constitution mandates. This has to be done by creating a government that establishes such mutual relations between its departments, which prevents one from interfering in the affairs of the other.

Madison further adds that without going into intricate details, he will try to point out what is the ideal division of power that the constitution envisioned. He says that the independence of the departments is only possible if members of each department have as little control as possible over the appointment and tenure of the members of other departments. This would probably mean that the members of all the three branches of the US Government―the legislative, the executive, and the judiciary―should be elected by the citizens. However, there has to be some deviation to this rule in case of the judiciary, since the judges need to have certain educational and moral standards that the common public may not understand. Besides, the judges hold tenure for life, which makes it difficult for other departments to control them.

The remuneration offered to the members of one department must also not be controlled by any other department. To prevent encroachment of one department on another, certain constitutional powers should be provided. The ambitions of members should be in sync with the independence of their departments, as is required by the constitution. Madison also points out that the need to make departments independent from each other is because of man’s nature to usurp others’ powers. The principle of creating divisions and subdivisions to keep each other in check is present in all endeavors, both public and private.

Madison further adds that a perfectly equal division of power is against the Republican nature of the US Government, since the legislature has to be the most powerful arm of the government, according to this system. However, any misuse can be checked by dividing the legislature into various branches; the members of which are elected by different channels, thus making them independent. The executive wing of the government has to be strengthened to counteract the effects of the strong legislature, but giving it absolute power to completely annul the decisions of the legislative may be counterproductive. This power may either not be imposed firmly or it may be abused to cripple the legislative.

After giving these observations, Madison points out a few interesting things about the Federal nature of the American Government. This system divides the government into two parts; each is then divided and subdivided further into various departments that keep a check on each others’ excesses. This provides a ‘double security’ to the citizens. Further, society has to be handled in such a way that its major faction does not stifle the rights of the minority. This can be done either by creating a powerful, authoritarian government which cannot be dissuaded by the majority, or by dividing the society itself into so many different classes that any single group cannot impose its own views. The later method is granted to the US Government by its constitution.

Madison says that the security of citizens will depend on the diversity of sects and interests throughout the country. A federal republic is in the interests of the citizens, since a country which consists of many states and confederacies will lead to oppression by the majority in each, and the laws of the republic grant enhanced powers and independence to a certain department or member to counteract against this oppression. He further adds that the main aim of any government is to establish justice, where both the weaker and stronger sects of society are protected and there is no oppression. In a state where members of the majority rule and oppress the minority sects, there is a tendency to tilt the balance in favor of a power independent of either the majority or the minority.

The federal nature of the American Government guarantees that it possesses the will to deliver justice, irrespective of the power of the strong or weak sections of society. A country of many large groups will benefit by self-governance, and despite being too large to follow a federal plan, this plan can be modified to make it both possible and practical for the United States.

☞ A department in the government may try to influence the working of another by controlling appointments, tenure, or emoluments of its members.

☞ The majority class in the society may hold sway over the government, using it to oppress the weak or minority classes of society.

☞ Giving increased powers to any one department to prevent other departments from becoming excessively powerful may backfire, as this power may be misused or used less firmly.

Solutions Given by Federalist No. 51

➤ The structure of the government should be designed in such a way that departments have their own powers, and are independent from encroachment by others.

➤ The personal interest of every member should lie in keeping members of other departments out of their way. In Madison’s own words, “Ambition must be made to counteract ambition”.

➤ Different departments should have contrasting powers and responsibilities to keep each in its place. For example, the US President, as the head of the executive, has the power to prevent the legislature from becoming too powerful. But if the president is found guilty of misdemeanor, i.e., he misuses his powers, he can be impeached. Thus, the legislature and executive can keep each other in check.

➤ The members of departments of the government can be elected by the citizens. Thus, the greatest control on the departments is in the hands of the people themselves, who can remove any representative who abuses his powers.

➤ The members of the judiciary, such as judges of the Supreme Court, are to be appointed by the executive, rather than the public, keeping in mind their moral and educational qualifications. These members keep the legislative and judiciary in their proper place, as they solve disputes regarding distribution of power between the two departments. Members of the judiciary also cannot be impeached by the other two branches. However, the constitution has placed controls on the judiciary, by stating that their judgments are not binding on the members of either, the legislative or the executive. It has also not given control of finances in the judiciary’s hands, which is under the control of the legislative.

➤ Checks have been placed on the executive and the legislative to prevent them from ignoring the judiciary’s interpretation of the constitutional laws. The main control is again, the people, as by ignoring the constitution, the members of the government risk insulting the people’s respect for their constitution.

➤ The legislative is prevented from becoming too powerful, by dividing it into two parts, and then subdividing each part into various subdivisions. The members of each are elected by the public via separate channels, keeping them independent from each other. Their contrasting powers also help keep each other in check.

➤ The influence of the majority faction in society can be curtailed by subdividing it into various factions, each with different aspirations. This way, any single faction is kept away from power.

➤ In a country of many states or confederacies, the members of the majority faction tend to be empowered. To keep this at bay, the powers of a specific member of the government can be increased proportionally, so as to impose a system of checks and balances.

Federalist No. 51 is one of the most popular federalist papers, because it tries to give more power to ordinary citizens, and upholds the principles of liberty and justice, which are applicable even today.

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The first amendment, historic document, federalist 51 (1788).

James Madison | 1788

On February 8, 1788, James Madison published Federalist 51—titled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” In this famous Federalist Paper essay, Madison explained how the Constitution’s structure checked the powers of the elected branches and protected against possible abuses by the national government. With the separation of powers, the Framers divided the powers of the national government into three separate branches: a legislative branch (called Congress), an executive branch (led by a single President), and a judicial branch (headed by a Supreme Court). By dividing political power between the branches, the Framers sought to prevent any single branch of government from becoming too powerful. At the same time, each branch of government was also given the power to check the other two branches. This is the principle of checks and balances. Madison and his fellow Framers assumed that human nature was imperfect and that all political elites would seek to secure greater political power. As a result, the Framers concluded that the best way to control the national government was to harness the political ambitions of each branch and use them to check the ambitions of the other branches.

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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. . . .

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. . . .

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. . . . 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. . . .

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.

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US government and civics

Course: us government and civics   >   unit 10.

• The Declaration of Independence
• The Articles of Confederation
• The Constitution of the United States
• Federalist No. 10
• Brutus No. 1

Federalist No. 51

• Federalist No. 70
• Federalist No. 78
• Letter from a Birmingham Jail

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

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The federalist no. 51, [6 february 1788], the federalist no. 51 1 by james madison or alexander hamilton.

[New York, 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 expence, 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 defence 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 controul 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 controuls 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 controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul 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 centinel 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 defence. 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 defence 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 departmen[t]?

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 2 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 3 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 controul each other; at the same time that each will be controuled 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 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 shews 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 form, 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 proportionally 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 4 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 5 any other principles than those of justice and the general good; and 6 there being thus less danger to a minor from the will of the 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 practicable 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 .

The [New York] Independent Journal: or, the General Advertiser , February 6, 1788. This essay appeared on February 8 in New-York Packet and on February 11 in The [New York] Daily Advertiser . In the McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition this essay is numbered 51, in the newspapers it is numbered 50.

1 .  For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

Essay 51, like essay 50, was claimed by H and Madison. The internal evidence presented by Edward G. Bourne (“The Authorship of the Federalist,” The American Historical Review , II [April, 1897], 449–51), strongly indicates Madison’s authorship. Bourne printed in parallel columns sentences from essay 51 which correspond very closely, sometimes exactly, to earlier writings by Madison. For other reasons why Madison’s claim to the authorship of this essay outweighs (but does not necessarily obviate) that of H, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 .  “it” substituted for “that system” in Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends .

3 .  “the” inserted at this point in Hopkins.

4 .  “or parties” omitted in Hopkins.

5 .  “upon” substituted for “on” in McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends and Hopkins.

6 .  “Whilst” substituted for “and” in McLean and Hopkins.

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Federalist 51

“It may be a reflection on human nature, that such devices [checks and balances] 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.

PDF: Federalist Papers No 51

Writing Federalist 51

In this Federalist Paper, James Madison explains and defends the  checks and balances  system in the  Constitution . Each  branch of government  is framed so that its power checks the power of the other two branches; additionally, each branch of government is dependent on the people, who are the source of legitimate authority.

Madison also discusses the way republican government can serve as a check on the power of factions, and the tyranny of the majority. “[I]n the federal republic of the United States… 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.” All of the Constitution’s checks and balances, Madison concludes, serve to preserve liberty by ensuring justice. Madison explained, “Justice is the end of government. It is the end of civil society.”

Madison’s political theory as expressed in this  Federalist Paper  demonstrated the influence of Montesquieu’s The Spirit of the Laws on the Founders.

Federalist 51 | Primary Source Essentials

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Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, From the New York Packet (Hamilton or Madison)

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “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?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he 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 government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “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.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another. ” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

•        “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 defence 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.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “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.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

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.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself .” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “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’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

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C | Federalist Papers #10 and #51

Federalist paper #10: the union as a safeguard against domestic faction and insurrection.

From the New York Packet.

Friday, November 23, 1787.

Author: James Madison

To the People of the State of New York:

AMONG the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

Federalist Paper #51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

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.

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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 J ames 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.

[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.

Federalist Papers

• Introduction
• On Union, Factions, Size of Country
• On the Infirmities of the Articles of Confederation
• On the Necessity of Energy in the Federal Government
• On the Republican Form
• The House of Representatives
• The Executive Branch
• The Judiciary
• Concluding Essays

The Federalist Papers

What is the thesis of federalist 51.

i dont the answer

This Federalist Paper, written by James Madison focuses on the need for checks and balances in government while reminding people in government that separation of powers is critical to balance any one person or branch whose ambition is overwhelming against someone who is also overly ambitious.

Actually the exact thesis is stated in the essay itself. It is as follows: "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 les and structure of government planned by the convention".

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Source & Citation Info

The federalist no. 51 (february 6, 1788), sponsored by be a sponsor, resource metadata.

• James Madison

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• The Federalist Papers

Annotations (6)

• Topic : Good Behavior Clause
• Topic : Presidential Veto Clause
• Topic : Enumeration of Rights Clause/Rights Retained by the People Clause
• Topic : Federal Due Process Clause
• Topic : State Equal Protection Clause
• Topic : Establish Justice Clause

Commentary on Federalist 51

This is the last of fifteen essays written by Madison on “the great difficulty” of founding. There are ten paragraphs in the essay.

1. The way to implement the theory of separation of powers in practice is to so contrive “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.”

2. Accordingly, “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.”

3. “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.”

4. A: “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… Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.”

B: Isn’t relying on ambition and interest, “a reflection on human nature?” But, adds Madison, what is government itself but the greatest reflection on human nature? If men were angels, no government would be necessary.”

C: “The Great Difficulty” of Founding: 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.”

5. “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.” Madison calls this policy “inventions of prudence.”

6. “In republican government, the legislative authority necessarily predominates.” Thus, it is “not possible to give to each department an equal power of self-defense.” Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) “some qualified connection” with the Senate.

7. The general government comes closer to passing the “self-defense” of each branch test than do the State governments.

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

9. First, America is a “compound republic,” rather than a “single republic.” This provides for a “double security… to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

10. Second, there are only two ways to combat “the evil” of majority faction, a) “by creating a will in the community independent of the majority,” or b) creating an authoritative source “dependent on the society,” but, and here is the essence of the American experiment, the society “will be broken down into so many parts,” that it contain a vast number and variety of interests. To repeat, the American society will “be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority.” Echoing Federalist 10, Madison says “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.” And both depend on “the extended republic.” Let us not forget, adds Madison, that “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.” Fortunately, in “the extended republic… 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.” We have rejected the “precarious security” provided by the “hereditary or self-appointed” alternative of “introducing into the government… a will independent of the society itself.”

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