FEDERALIST No. 51



The Structure of the Government Must Furnish the Proper Checks

and Balances Between the Different Departments

For the Independent Journal. 

Wednesday, February 6, 1788. 



MADISON



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

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

gradnally 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.



PUBLIUS