Federalist No.47

The title of this paper alludes to the particular structure of the new government, but this is something of a misnomer. Federalist No.47 does not set out to discuss how the federal government is to be structured, but to address criticisms the new Constitution has received over the way it separates the powers of the branches of government: the executive, the legislative and judiciary. The danger, it is claimed by critics of the Constitution, is that it could allow one branch of government to become disproportionately powerful and influential over the other two. Madison concedes that the accumulation of all powers, legislative, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Madison attributes the principle of the separation of powers to Montesquieu, whose political theories have already been the subject of Federalists 9 and 10. Madison argues that Montesquieu’s principles have been misinterpreted, and that the principle of the separation of powers in State constitutions has not followed the interpretation currently being used to criticise the new Federal Constitution.

Madison first points out that Montesquieu held the British constitution up as a model for the separation of powers, yet the British system has many instances in which there are overlaps in the powers of the branches of government. By ‘overlaps’, I mean instances where members of the judiciary are appointed by the executive, for instance, where treaties made by the executive have the power of legislation, or where members of the judiciary may sit on legislative councils, albeit without a vote. Madison draws upon many instances in this paper from both Britain and the example of the American States, in which one branch of government has specific powers over another, or appoints members to another branch, or consults or advises on certain aspects of another branch. I won’t go into the details for each, since Madison covers overlaps in the State constitutions of New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North and South Carolina and Georgia. The point Madison is making is that Montesquieu did not intend a complete separation of powers, but that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This is, of course, Madison’s interpretation of what Montesquieu meant, although he does pick a few quotes to support this interpretation, which address the issue of separate powers residing in one person.

As to Madison’s summation of State constitutions, the sum effect is that State constitutions have many overlapping powers themselves of one form or another. This occurs even in States like Massachusetts. Massachusetts’s constitution stated for each branch of government that they should never exercise the powers of either of the other two, yet there are overlaps in the Massachusetts constitution.

All this underpins Madison’s assertion that the Federal Constitution necessarily has some overlaps in the powers of each branch of government, even though the principle of the separation of powers has been adhered to. In fact, he argues, several State constitutions were more hastily prepared than the current Federal Constitution under consideration, and have greater overlapping powers.

So, Madison’s two arguments regarding the separation of powers are:

1. What Montesquieu’s meant by separation of powers has been misconstrued and;
2. By the examples of State constitutions, the sense of what the separation of powers has previously meant in America does not match what the detractors of the Federal Constitution now deem it to mean.

14 April 2019