James Madison begins this paper by telling his readers that he is going to examine a specific principle of republican government: "separation of powers." One of the principal objections to the constitution is that it violates this important principle. Its opponents claim that the three branches of government are not sufficiently separate and independent and that power is too unevenly distributed. It is feared that the new government will collapse, and that liberty will be threatened.
Madison agrees with those who place great importance on the separation of powers, especially on the point that an unequal division of power could result in the loss of liberty. If one branch has too much power, it does not matter how many men govern or how they obtain office. Too much power in one branch of government "is the very definition of tyranny." If these claims were true, Madison says that no other arguments would need oppose it. He, however, is convinced that this charge cannot be supported. How separate should each branch of government be?
Montesquieu, the French political writer, formulated this principle of government. He took the British constitution as his model, which he called "the mirror of political liberty." However, the most casual glance at that constitution reveals that the branches of the British government are far from totally separate or distinct. For example, the English king acts in a legislative capacity when he enters into treaties with foreign sovereigns: once treaties are signed they have the force of legislative acts. The English king not only appoints and removes judges; he frequently consults them. The judicial branch, then, acts in an advisory capacity to the executive branch. The legislative branch advises the king on constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial power. From these few facts, Madison infers that Montesquieu, when he wrote that "there can be no liberty where the legislative and executive powers are united in the same person . . . or, if the power of judging be not separated from the legislative and executive powers," did not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches.
Madison continues that if one looks at the state constitutions, there is no state in which the branches of government are absolutely separate and distinct. The state constitutions do not violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and neither does the United States Constitution.
Analysis
In this essay, Madison clearly delineates his philosophy concerning separation of powers. Calling the accumulation of legislative, executive, and judicial power in the same hands - whether of one, of a few, or of many, and whether hereditary, self-appointed, or elective - the very definition of tyranny, Madison considers their separation essential to the preservation of liberty. He points out that when the legislative and executive powers are united there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. Furthermore, "were the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."
This was not the only time that Madison had talked about the separation of powers. Before the first Congress, Madison said on June 17, 1789, that the principle of the separation of powers "is to be found in the political writings of the most celebrated civilians and is everywhere held as essential to the preservation of liberty . . . ; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation."
The authors of the Federalist took a rather cautious attitude toward legislative supremacy. In their desire to secure free government, they were in favor of a system of government under which the legislature would not be more important than the other branches of government. This led them to follow the classic exponent of the separation of powers, Montesquieu. The Frenchman provided the additional machinery that was necessary to make a reality of the ideal of a government of laws and not of men, combined with the Lockeian concept of free government and the sacrosancity of property.
