51st Federalist

Introductory note: Publius had to face great public skepticism toward a strong government, but had rather effective counter arguments in pointing out (or hinting at) the disaster of the Articles of Confederation and Shays' Rebellion of 1787

Daniel Shays and other ex-Revolutionary War soldiers, under crushing financial pressure and threat of losing their property for non-payment of debts and taxes, used force to prevent the courts in western Massachusetts from sitting. The governor of Massachusetts called upon the Continental Congress for troops, but the Congress could not raise nor finance them. The governor then called on his own state militia, only to discover there was none. The desperate governor finally collected private contributions and hired a volunteer army. While this army easily dispersed Shays' men, the picture of armed rebellion and the lack of power to deal with it created fear throughout the states.

The 51st does hint at these problems, particularly Shays' Rebellion, when Madison in the famous fourth paragraph says we must "first enable the government to control the governed." But the 51st Federal is going beyond these arguments for the need for central power, arguments made in previous papers, to discuss how this central power, once established, would then be checked.  For further information read the full text.

To what expedient should we turn to maintain the necessary partition of power among the various parts of government?

"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."

He then offers three means of doing so:

(1) "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." But, does this apply to the judiciary? Why? No, because special qualifications are essential and appointment will better secure these qualifications, and because permanent tenure will "destroy all sense of dependence on the authority" which appointed them.  See also Hamilton's 78th Federalist re the judiciary.

(2) "Members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices."

(3) "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. ... Ambition must be made to counteract ambition."

What is Publius' view of human nature? What then are the roles of government? How then should government be structured?

Consider the fourth paragraph, already partly quoted for item (3), above:

"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."

How extensive is the separation of powers? Would two departments be enough?

Madison does not here explicitly address the second question, because it was commonly seen that a two part division is unstable: one part will eventually have a slight edge over the other, and then can exploit this edge to aggregate complete power. With three or more reasonably equal authorities, stability is better protected because if one begins to assemble greater power the others have reason and the combined power to join to put the first back into place.

Even with three branches, Madison is concerned: "But it is not possible to give to each department an equal power of self defense. In republican government the legislative authority, necessarily, predominates." A side question here: Is Madison right in this assessment of relative power? Is the assessment correct today? Why do you suppose Madison believed this? The legislative branch has become the trusted branch of government during the colonial period of Royal governors, and was seen as the body of the people, and hence having the best connection with and support from the people.

So, how is the proposed government protected from a dominant legislature?

"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. .. The weakness of the executive may require, on the other hand, that it should be fortified" (with the veto power).

In addition, he points out, the constitution is based upon another division of power, between state and federal government which adds two additional protections:

(1) "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.... The different governments will control each other; at the same time that each will be controlled by itself."

(2) The republican form of government allows a nation of a larger population and geographic area, thus providing the protections discussed in the 10thFederalist.

Is the separation of powers a sharp and absolute division of roles?

No. Look at the appointment (executive) roles of the Senate and the veto (legislative) role of the President.

Some overlap is necessary for a true check. The separation is not an absolute protection of independent action; if it were there would be no check. As one scholar put it a century ago, the constitution provides a separation, not a disconnection.

Concluding note: Madison's genius of the 10th Federalist is matched by his eloquence in the 51st. The fourth paragraph ranks with the first sentences of the Declaration of Independence, the Preamble to the Constitution, Lincoln's Gettysburg and 2nd Inaugural addresses and F. D. Roosevelt's four freedoms as foundation stones of American political culture, ideals, and structure.