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.

JAMES 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 gradually 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
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"The struggle of History is not
between the bourgeoisie and the
proletariat; it is between government
and the governed."

Jerry McDaniel
The Illinois Conservative