The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts (No. 47)

In Federalist 47, one of the more famous of the Federalist Papers, Madison examines the separation of powers under the Constitution. Anti-federalists had been objecting to the Constitution on the basis that the legislative, executive, and judicial branches were insufficiently separated.

Madison agrees that separation of powers is essential for good government: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny." He disagrees, as you might suspect, that the Constitution lacks such separation. In doing so, Madison refers (as all Enlightenment thinkers must) to Montesquieu, the expert on the philosophy of governments.

Madison contrasts the Constitution with that bugbear of American revolutionaries, the British "Constitution." In Britain, then and even more so now, there was and is no separation of powers. The executive could control Parliament pretty well in those days, and the Parliament and the King controlled the judges, too. (Today, the Parliament has let the judges be somewhat more independent, but the crown is effectively a nullity and no independent executive has taken its place.) Madison points out, however, that Montesquieu admired the British system, even with its incomplete separation.

From this, Madison interprets Montesquieu to mean that where the whole power of one branch is in the same hands as the whole power of another, there is tyranny; but where some powers overlap to some extent, there can still be free government. Where the same man can enact a law and execute it, or where the same man may enact a law and judge violations of it, Madison writes, there is tyranny. This was not the case under the British system, and is even less true of the American Constitution.

Madison turns his examination from the general to the specific, and looks at the constitutions of the states. The states would all insist that their constitutions ensure liberty and separation of powers, and yet the separation is not complete: New Hampshire's governor was elected by the legislature; in Massachusetts, the legislature appointed executive officers and may impeach the governor; the same was true of New York; in New Jersey, the governor was a member of the Supreme Court; Pennsylvania's legislature could impeach the judiciary officers; in Delaware, some members of the legislature were automatically justices of the peace; Maryland, again, has the executive appointed by the legislature; in Virginia, county judges may sit in the legislature; in both Carolinas, the legislature appoints inferior executive officers; and finally, in Georgia, the legislature appoints justices of the peace and exercises the pardoning power.

The point of all that is for Madison to show that the branches may (and even must) interact. It is a complete overlap of powers, rather than a sharing or interaction of powers, that opens the door to tyranny.