Federalist No.49

Method Of Guarding Against The Encroahments Of Any One Department Of Government By Appealing To The People Through A Convention

Saturday, February 2, 1788

James Madison


In this paper Madison addresses the problem of how the encroachment of government power by one arm of government over another should be addressed. He recognises that the ultimate authority in a republican government is the people, as has been stated in numerous Federalist Papers, but that the exercise of that power for the practical purposes of ensuring the separation of government powers is not practical.


Thomas Jefferson, whose Notes on the State of Virginia is cited in the previous Federalist Paper, had attached a draft constitution for that State to that work. His draft constitution outlined a means by which the State constitution might be amended: that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution. Madison extrapolates from this that such a model might also be used in cases where one branch of government encroached upon the powers of another, since the authority of the people is a fundamental tenet of republican government. Madison's main focus in this paper is to argue why this is not a practical way of guaranteeing the separation of powers. Madison argues that such an appeal to the people would only be practical under the most extraordinary of circumstances. Frequent resorts to this option would disturb public tranquillity and would carry an implication of some defect in the government. Apart from that, Madison sees that it would have a destabilising effect on the country, since most State constitutions were developed during the war with England when it was easier to achieve agreement between different factions. That would be unlikely in the future.


Madison also returns to the issue that the legislative branch has a stronger influence with the people, since it is most representative of their will. In any appeals to the people by the executive or the judiciary, in cases concerning the encroachment of powers, the legislative, owing to its greater numbers and broader base of support, would have an advantage. Added to that, since it is more likely that the judiciary or executive would be appealing to the people against the legislative arm, the convention convened to deal with an issue would be composed mostly of those from the legislature whose conduct may be under arraignment.


Madison concludes by arguing that in these circumstances, passions that represent the public mood, rather than reason, would be the overriding factor in the decisions of a convention, which is against the very principles of a government: to organise society so that passion is ruled by reason. Therefore, appeals to the people would be impractical to ensure the separation of powers within government.

24 April 2019

Revised and updated 27 May 2022