Federalist 47 Paraphrased
Federalist No. 47 - How State Constitutions Handle the The Separation of Powers paraphrased into modern English
by James Madison, January, 1788
To: the People of the State of New York:
Now that we've looked at the general form of the government proposed in the new Constitution and how much power it will have, let's look at its structure and how the power will be divided among its various parts.
One of the main objections brought up by reasonable critics of the Constitution is that it supposedly violates the political truism that the three branches -- legislative, executive, and judicial -- should be distinct and completely separate. They claim that the new government has been structured without giving any thought to essential preventative measures that will favor liberty. Instead, the three branches are divided and blended in a way that destroys all balanced proportion and pleasing form, as well as exposing some of the vital parts of the structure to the risk of being crushed by the imbalanced weight of the other parts.
That objection has some validity. The concern to protect liberty is the greatest basic tenet of political truth, and the more informed supporters of liberty know its value. Putting all the authority of the legislative, executive, and judicial branches of government in the hands of the same people, whether it's a single person, or a handful, or a large group is the very definition of tyranny, whether those people inherit their positions, appoint themselves, or get elected. If the Constitution really did allow power to accumulate dangerously into the hands of the same people, that would be a good reason to dispense with it altogether, no further discussion needed. But I'm convinced that everyone will see that this fear is unfounded, and that this political truism is completely misconstrued and misapplied. But if we're going to get at correct ideas regarding this important subject, we'll need to consider how preserving liberty requires that the three branches of power to be kept separate and distinct.
The expert we always refer to and quote about this subject is the esteemed Montesquieu. He may not be the one who originally wrote that helpful concept about keeping the powers separate, but he deserves the credit for promoting it and successfully bringing it to the attention of mankind. So let's try, first of all, to understand what he meant.
The British Constitution meant as much to Montesquieu as Homer means to academic scholars of epic poetry. In the same way that those scholars consider the immortal poet to be the perfect model of the principles and rules of epic poetry, and the standard by which to judge all other poetry, so Montesquieu the political analyst seems to have viewed the Constitution of England as the highest standard, or, as he phrased it, the perfect mirror of political freedom. He observed the various characteristic principles of that Constitution and defined foundational truths about government from them. To make sure we don't misunderstand what he meant, let's go back to the source where that political truism came from.
Even a casual glance at the British Constitution makes it apparent that the legislative, executive, and judicial branches aren't completely separate from each other. The executive [Prime Minister in Britain's case] is a crucial part of the legislative [Parliamentary] authority. He's the only one who can make treaties with foreign leaders, and when those treaties are made, they carry the same authority as laws, with certain limits. He appoints all the judges, and he can remove them by addressing Parliament. When he wants to consult them, they make up one of his constitutional councils. One of the branches of Parliament also makes up part of his constitutional council. On the other hand, the judicial branch tries impeachment cases, and has the highest appellate jurisdiction [is the most powerful court over lower courts] in all other court cases. The judges are so involved with the legislative branch [Parliament] that they frequently attend and join in Parliamentary debates, although they're not allowed to vote in Parliament.
These are the facts Montesquieu observed, so we can assume that when he said, 'there can't be any liberty when the legislative branch and executive branch are held by one person, or one group of people,' or 'the ability to judge cases isn't separate from the legislative and executive branch,' he never meant that the branches shouldn't even play a small part in the actions of the others, or have no control over what the others do. His meaning is clear from the words he used and the example he gave as an illustration. He meant that when the entire power of any single branch is operated by the same person or persons that hold total control of another branch, the basic principles of a free Constitution are destroyed. He would have said this in a case where a king, as the executive, was also the highest judge, or if Parliament was the highest judge, or if Parliament was the highest executive power. But that's not the case with the British Constitution. The highest person in the executive office [the Prime Minister] can't make a law by himself, although he can veto a law. He can't judge cases himself, although he can appoint those who do judge cases. Judges can't exercise any executive privileges, although they're selected by the executive. Judges can't make laws, although they can give input in legislative debates. The legislature [both houses of Parliament] can't act together as judge of cases, although both have a separate role in impeaching judges, and one of the houses of Parliament has judicial power as a last resort. The two legislative branches can't work together as an executive branch, although one branch makes up the highest executive magistracy, and if one of the three is impeached, can try and condemn all of the lesser executive officers.
The reasons Montesquieu gives to support his political truism illustrate his meaning even more. He writes, 'when the same person or group of people control the legislative and executive branch of government, liberty cannot exist because there's always a fear that the king or senate will pass tyrannical laws and then enforce them in tyrannical ways.' He also writes, 'If the same people controlled the judicial branch and the legislative branch, they would have arbitrary control of the life and freedom of their subjects, because the very one who judges the people would be making the laws. And if the same person had the executive branch and the judicial branch, you'd end up with a judge behaving with the same violence as an oppressor.' Some of these reasons are explained more fully elsewhere, but this is enough to clarify what this famous author meant about his popular political truism.
If we look at the Constitutions of the various States, we see that, even though they all hold to the political truism about separating the different branches, there's not even a single instance where all three branches have been completely isolated from each other. New Hampshire, whose Constitution is the newest, seems like they were fully aware that it would be impossible and futile to keep these branches completely separate, so they qualified the political truism by acknowledging 'that the branches should be kept as separate and independent from each other as possible as a free government will allow, or as much as possible in a government where the whole structure of the Constitution is connected in one permanent bond of unity and goodwill.' New Hampshire's Constitution mixes the branches in several ways. The Senate, which is part of the legislative branch, also acts as judge in impeachment trials. The executive, or president [governor?] is also the leading member of the State Senate with voting privileges. In the case of a tie, his vote is the tie breaker. The State's legislative branch elects the executive every year, and the legislative branch selects some from among their members to serve as the executive's council. They also appoint other State officials. And the executive appoints members of the judicial branch.
The Massachusetts Constitution also expresses this political truism, though not as specifically. Their Constitution says, 'the legislative branch may never use executive or judicial powers; the executive branch may never use legislative and judicial powers; and the judicial branch may never use the legislative or executive's powers.' This completely lines up with Montesquieu's opinion as stated above, and Montesquieu's opinion also happens to line up with the proposed federal Constitution. Massachusetts's state Constitution doesn't go any farther than saying that no branch of government is allowed to use the powers of another branch. This is stated in the prefix to their Constitution; their Constitution itself actually has the different branches partially mixed and involved with each other. The executive has veto power over the legislative branch, the State Senate, which is half of the legislative branch, acts as judge in trials where the executive or a judicial member is being impeached. The executive appoints judges, and can remove them if the two legislative branches approve. And, finally, the legislative branch appoints government officials every year. Appointing government officials is naturally the business of the executive, especially when the officials will be working in executive offices, so the writers of the Massachusetts Constitution actually violated their own rule.
I'll skip the constitutions of Rhode Island and Connecticut, since they were written before the American Revolution, when the political principle we're considering hadn't come up yet.
New York's state constitution doesn't address the subject outright, but it clearly seems to have been written with the risk in mind of improperly blending the three branches. Yet it gives the executive some control over the legislative branch, and gives the judicial branch a similar control over the legislature. It even joins the executive and judicial branches in order to exercise this control. And some appointed members of the legislative branch work with the executive to appoint executive and judicial officers. Also, when there's an impeachment trial or trial for correction of errors, the court is to be made up of one of the legislative branches and the leading members of the judiciary branch.
New Jersey's constitution blends the different branches even more. The executive, which is the state's governor, is appointed by the legislative branch, and this governor is chancellor or surrogate of the State, and serves as a member of the Supreme Court of Appeals, and serves as president of one of the legislative branches with voting privileges. Meanwhile, the legislative branch acts as the governor's council, and serves along with him in the Supreme Court of Appeals. Judges in the judicial branch are appointed by the legislative branch, and can be impeached by one department of the legislative branch, and removed in an impeachment trial by the other department.
In Pennsylvania, the executive is voted in every year by an election that the legislative branch manages. He works with an executive council to appoint judges to the judiciary branch, and forms a court for trials to impeach executive and judicial officers. Judges in the State's Supreme Court and justices of the peace can be removed by the legislative branch, and they have to approve all pardons from the executive branch. Members of the executive council are automatically considered justices of the peace throughout the state by virtue of their office.
In Delaware, the executive is elected every year by the legislative branch. The speaker of the House and Senate act as vice-presidents to the executive. The executive, along with three members of the State House and State Senate, make up the Supreme Court of Appeals, and he and the legislative branch appoint the other judges. It seems like all the States have members of their legislative branches acting as justices of the peace. In this very state of New York, the members of one of the legislative branches act as justices of the peace by virtue of their office, and so do members of the executive council. The legislative branch appoints the leading officers of the executive department, and one of the legislative branches judges impeachment trials. Any officer can be removed if enough of the legislature agrees.
Maryland's constitution expresses the separation of the three branches in absolute terms. It says that the legislative, executive, and judicial branches of government should be completely separate and distinct from each other. Yet Maryland's constitution also says that the executive is to be appointed by the legislative branch, and the executive is to appoint members of the judicial branch!
Virginia's constitution is even more explicit. It says, 'that the legislative, executive, and judiciary branches must be separate from each other and distinct. No branch shall use the powers that belong to another branch, and no single person may act in any two branches at the same time, with the exception that judges in small county courts are eligible to run for State legislature, either as Senator or Representative.' And this is not the only exception. The highest executive and his council are appointed by the legislative branch. Also, every third year, two members of the legislative branch are chosen by the legislature to be displaced, and, in addition, the legislative branch fills vacancies in the executive and judicial branches. Issuing pardons is usually reserved for the executive, but in one case, the legislative branch is authorized to do this.
North Carolina's constitution says, 'the legislative, executive, and judiciary branches of government should always be separate and distinct from each other.' Yet it also gives the legislative branch the power to appoint, not only the chief executive, but all of his main officers, and the main judges in the judicial branch.
In South Carolina, the constitution gives the legislative branch the authority to help select the chief executive. The legislative branch also appoints all members of the judiciary branch, including sheriffs and justices of the peace, and executive officers, including captains in the State's army and navy.
The constitution of Georgia says, 'that the legislative, executive, and judiciary departments must be kept separate and distinct so that no branch uses powers that belong to another branch.' Yet their executives are appointed by the legislative branch, and the executive's privilege of granting pardons must be approved by the legislative branch. The legislative branch even appoints justices of the peace.
I'm not mentioning these cases where the branches haven't been kept separate to state my approval of the way these States have set up their constitutions. I am very aware that, although they have many excellent points, they also show signs of being written in a hurry, and reveal an understandable lack of experience. In some places, there are obvious violations of the principle of separation--the branches are blended too closely, or even joined too much. None of them shows an adequate provision for keeping them separate in practice. I merely wanted to show that the accusation that the proposed Constitution violates the sacred political principle of free government is undeserved. The original author of the truism didn't mean for the branches to be completely separate, and various State constitutions show that America hasn't understood it to mean complete separation, either. The next Federalist Paper will explore this topic further.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, June/July 2020
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