Federalist 48 Paraphrased
Federalist No. 48 - The Branches Shouldn't Be So Separate That They Have No Control Over Each Other paraphrased into modern English
by James Madison, February 1, 1788
To: the People of the State of New York:
In the last Federalist Paper, we showed that the political truism we discussed [about the three branches staying separate from each other] doesn't require that the legislative, executive, and judiciary branches should be kept completely isolated from each other. Now I'll show that these branches need to be connected and blended enough to give each of the branches enough constitutional control over each other to ensure that there's the kind of separation that the truism requires to maintain a free government in practice.
Everyone agrees that any authority that belongs to one of the branches should not be directly and completely carried out by either of the other branches. Power has a tendency to encroach, so it should be effectively restrained and not allowed to go outside the limits set for it. After determining the various kinds of powers and which belong to the legislature, which belong to the executive, and which belong to the judiciary, the next task is even more difficult: to design some practical way for each branch to protect itself from the encroachment of the other two branches. The question is -- what kind of protection is needed?
Will it be enough to define in the Constitution precisely what the boundaries of each branch are, and then trust those branches to abide by those definitions? That seems to be the route taken by most of the State Constitutions. But experience has shown that this isn't always enough. Something more is needed to keep the stronger branches from encroaching on the weaker ones. The legislative branch [<em>Congress</em>] has a tendency to increase its area of influence, pulling more and more power into its eager clutches.
Those who originally established our republics [the Greeks? Or those who wrote the Articles of Confederation?] deserve credit for their wisdom, so it's not pleasant to point out any of their errors. But, in our desire for the full truth, we must admit that they seem to have been focused on hereditary monarchs threatening the people's liberty with their excessive and greedy authority, with the help of hereditary legislators. They don't seem to recognized that the legislature itself can concentrate all the power of the government into its own hands and be just as dangerous as any tyrannical monarch.
In a government where many various privileges are put into the hands of a leader whose position is inherited, the monarchy becomes the source of danger and must be watched carefully if the people's liberty is going to be protected. In a [pure] democracy, many people share legislative duties, but they may not be able to hold regular deliberations for coordinated projects. This can make them more susceptible to schemes of the executive branch in an urgent situation. But in a representative republic, the executive branch is strictly limited -- the executive has restricted powers, and he's only in office for a specific amount of time -- and the legislature is managed by a group of people who are inspired by the wishes of the voters who elected them and by the bold confidence of the people. This group is large enough to represent all the various interests of the citizens, but not too large to get anything done effectively. The energetic ambition of this group of representatives is the threat the citizens should be watching carefully.
There are other circumstances that give the legislative branch an advantage in our government. The Constitution gives the legislature far-reaching powers with less defined restrictions. In addition, legislators can easily disguise any encroachments they make on the other two branches behind complicated and indirect laws. It is often a subtle point in legislation whether enacting a specific law will extend beyond their intended power or not. Since the executive has a narrower domain, and more simple role, and the boundaries of the judicial branch haven't been defined yet, it would be immediately obvious if either of them tried to exceed their authority. The legislative branch is also the only branch that has access to the people's money [taxes]. Some state constitutions give their legislators full responsibility, and all state constitutions at least give the legislators the strongest influence over the salaries of the people who fill the other two branches. This makes the other two branches more dependent on the legislature, which gives the legislature more opportunity to encroach on their authority.
You know I'm speaking the truth from your own experience. I could give example after example. Every citizen in the country has witnessed this kind of thing, if not experienced it first hand, in the course of government management. I could collect written evidence in the records and archives of every State in the Union. But I'll stick to something brief that will be just as conclusive: I'll use the example of two States, verified by two typical authorities.
First is Virginia, whose Constitution declares that the three branches of government should be kept separate. The authority who can verify this is Thomas Jefferson. In addition to writing about the way government works, he has been the Governor of Virginia. To express the ideas he gained from his experience, we'll quote some of his Notes on the State of Virginia, page 195. 'All the powers of the government -- legislative, executive, and judiciary powers -- have a tendency to default to the legislative branch. Concentrating the powers of all three branches in the hands of the same people is the very definition of tyranny. Whether this power is spread among multiple people, or in the hands of a single person, it's still a dictatorship. Whether it's 173 despots or one dictator, it's still tyranny. If you doubt it, just look at Venice [The Republic of Venice was ruled by an oligarchy of merchants and aristocrats until Napoleon.] It doesn't make it any less oppressive if we elect the dictators. We didn't fight a revolution to set up a government of elected tyrants. We fought for a government founded on principles of freedom, a government whose powers would be divided and balanced among several branches in such a way that no branch would be able to exceed their limit without being effectively curbed and restrained by the other branches. That's why the first convention created the Articles of Confederation based on a plan where the legislative, executive, and judiciary branches would be separate and distinct, and no single person would be able to control the powers of more than one branch at a time. But there was no barrier set up between these branches. Members of the judicial and executive branches depended on the legislative branch for their pay or their ability to stay in office. That meant that if the legislative branch overstepped their authority and used powers that were supposed to be reserved for the judicial or executive branches, those branches weren't likely to protest. Even if they did, their complaint would have to go before the legislative branch. As a result, the legislative branch under the Articles of Confederation has made decisions about rights that should have been left up to the judicial branch or the executive, and this has been happening more and more frequently.'
The other example is from Pennsylvania. Their Council of Censors met in 1783/84. Their State constitution said that one of the duties of this Council was to 'make sure that no part of their State constitution had been violated, and that the legislative and executive branches of their State government were doing their duty of protecting the people, rather than taking on more power than the Constitution entitled them to.' In performing this responsibility, the Council needed to compare the actions of the legislative and executive branches with what their Constitution outlined for them. Their observations demonstrated that the legislative branch had blatantly violated the Constitution in a many significant instances.
Their State legislature had passed many laws that violated, for no real reason, the rule that all public bills must be printed for the people to consider before they get passed. Yet this rule is one of the primary safeguards set up to keep the legislative branch in check.
The constitutional right to trial by jury had been violated, and authority was used that the constitution hadn't granted.
Power that belonged to the executive branch had been wrongly taken by the legislative branch.
The constitution had set a salary for the judges, but the legislative branch had sometimes changed it. Cases that should have been tried by the judicial branch were frequently discussed and decided by the legislative branch.
If you want to see the evidence of these instances, they're in the printed journals of the council. Some of them can be blamed on the war, but most of them are simply the result of a badly formed government.
The executive branch has also been guilty of violating the State constitution. But there are three observations that can be made about this: 1. Most of these violations were either necessary because of the war or recommended by Congress or the Commander in Chief. 2. Most of the other cases were things the legislative branch was in agreement about. 3. Pennsylvania's executive department is unusual because of the number of executives it has. It's more like an executive council, which makes it somewhat like a legislative branch. It isn't in the hands of a single person who can act on behalf of a group of people, and it gets confidence from the group and their combined influence. That makes them more likely to risk unauthorized measures than a single person would dare.
In conclusion, merely stating on a piece of paper that the branches should stay separate isn't enough to protect encroachments of power that lead to the tyranny of all the power ending up in the hands of the same people.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, July/August 2020
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