On this day in 1788, Federalist Paper No. 48 is published. James Madison (a.k.a. “Publius”) continues his discussion of separation of powers in government.
Madison agreed that separation of powers was critical in a free country. If the whole power of two departments falls into the hands of one person, then power can be abused. A President, for example, should not possess the whole power of legislating and the whole power of enforcing the law, simultaneously.
But ironically, Madison notes, giving these governmental functions complete separation, on paper, ensures that complete separation will not be maintained. “[P]ower is of an encroaching nature,” he observes. Thus, the best way to keep each department within its proper sphere is to connect and blend the departments, just a little. For instance, a presidential veto should keep the legislature in check. And the legislative power to impeach the President should keep the executive in check.
“[U]nless these departments be so far connected and blended as to give to each a constitutional control over the others,” Madison concludes, “the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”
Madison seems to think that America is in greater danger from legislative tyranny than tyranny by the executive or the judiciary. Without some constraint, the “legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”
Hmmm. I wonder what he would say today. It seems like each branch has come up with its own and unique way to exceed its authority, doesn’t it?!
In short, Madison argues that some blending of power is actually necessary to ensure that no single branch of government takes over the others. Each branch is given just enough power so it can defend itself from encroachments by the other branches. Perhaps another way to describe this is to say that “separation of powers” is incomplete without “checks and balances.” We need both.