Monster Media 1994 #1/monster.zip/monster/EDUCATE/USCON2.ZIP/FED51.DAT

Text File | 1994-01-25 | 12KB | 216 lines

                     The Federalist, Number 51

  The Structure of the Government Must Furnish the Proper Checks
  and Balances Between the Different Departments

  Hamilton or 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.