Having dismissed the possibility that the separation of the powers of government could be maintained through appeals to special or regular hearings, Madison now argues that protecting the independence of each branch of government must be achieved through the structure of government itself; that each department should have
its own will and
as little agency as possible in the appointment of the members of the others. However, Madison makes an exception of the judiciary on this last point for two reasons. The first concerns the special qualifications required, thereby necessitating a process that selects a person best suited for a judicial position. The second is that members of the judiciary have permanent tenure, which soon makes them independent of the authority which appointed them.
Apart from this, Madison argues that each department should have the constitutional means to resist encroachments of power from other departments, and that personal ambition by those tasked to perform the functions of government in each department will be the motivation to protect those powers.
This last point is the basis of an interesting philosophical underpinning of Madison’s thinking: that government
is the greatest of all reflections on human nature; that if human nature was perfect – he uses the scenario of humans either being angels, or being ruled by angels, as a metaphor – then government would not be necessary. In essence, then, government is an acknowledgement that humans are imperfect, and that it is designed to curb the worst excesses of our nature.
Madison extends the import of this observation beyond the departments of government to the civil liberties of all Americans. If government represents the broader community, then the danger lies in governments only representing the will of the greater majority. Madison argues that this danger is especially present in constitutions with hereditary or self-appointed rulers, who have no incentive to properly represent the concerns of the minority or weaker classes.
America’s Constitution, however, divides the powers of government, not just between State and Federal governments, but through the subdivisions of departments which are meant to act with their
own will. Essential to the functioning of the American system is the size of its population, since the great number of Americans naturally leads to a multiplicity of views, needs and agenda, all of which coalesce to form what is referred to in these papers as
the will of the people. Of course, one might argue that this does not preclude majority interests which might form across several States – Madison acknowledges this – but neither does that mean that the rights of the minority should be weakened when strong factions come into play. Madison has two reasons for this, the first philosophical and the second practical.
His philosophical argument is that civil society is threatened when strength rather than law is the general arbiter of social order:
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.
In essence, government and the rule of law is what separates us from animals. It’s an idea that runs through one of my favourite novels, The Once and Future King by T.H.White. Although a monarch, Arthur is enlightened enough to understand that his kingdom is in anarchy because individual knights use the force of arms for their own interests. It is not possible for a single man to rule such a kingdom. Instead, Arthur institutes laws which bind the knights to him, and a code of chivalry which expects them to serve those laws for the good of all, rather than their own selfish interests. In this way, Arthur civilises Britain through law, not force of arms.
Madison’s second argument is a practical one; that even majorities cannot be secure in their influence, and therefore it is in their interests to adhere to the rule of law, also, which sometimes necessitates decisions outside the interests of that faction. In essence, even the strongest knight may find themselves weakened or their influence diminished at some time in the future. As Madison has previously observed in the matter of the separation of powers, self-interest will be a strong motivating factor in the protection of the independence of each government department and the rule of law. This is, in essence the purpose of what Rousseau called ‘the social contract’, and some of Madison's language and ideas seem to be drawn from Rousseau here. That physical violence, or I might add, political dominance and the accruement of power, does not assure a stable society. Rousseau wrote, “The strongest man is never strong enough to be the master all the time.” To this he added:
Let us grant, for a moment, that this so-called right exists. I suggest it can only produce a tissue of bewildering nonsense; for once might is made to be right, cause and effect are reversed, and every force which overcomes another force inherits the right which belonged to the vanquished. As soon as man can disobey with impunity, his disobedience becomes legitimate: and as the strongest is always right, the only problem is how to become the strongest. But what can be the validity of a right which perishes with the force on which it rests? If force compels obedience, there is no need to invoke a duty to obey, and if force ceases to compel obedience, there is no longer any obligation. Thus the word ‘right’ adds nothing to what is said by ‘force’; it is meaningless.
All this is to say that for civil society to function, it is best that power is not vested in one person or institution, and that there are means by which a balance can be achieved through the institutions that serve that society. Madison concludes by saying that the larger a society, the greater its potential for self-government, given that diversity is key to stability.
6 May 2019
Revised and updated 29 May 2022