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3: Separation of Powers and the Madisonian Model: A Reply to the Critics - George W. Carey, In Defense of the Constitution 
In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995).
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Separation of Powers and the Madisonian Model: A Reply to the Critics
Separation of powers, in many respects the most important of our constitutional principles, is beyond any question the most misunderstood. And this misunderstanding is widespread; it is not simply confined to the ignorant and ill-informed. For instance, the revisionists and modern critics of our constitutional system who are found in abundance at our seats of higher learning point to separation of powers as proof positive that the Framers, while professing republicanism, were in fact building a system that would permanently entrench vested minorities. Somewhat astonishingly, many modern conservatives look upon separation of powers in essentially the same fashion: as a barrier to naked majorities that would trample on the rights of private property. Of course, quite unlike the liberal critics, the conservative looks with favor upon the Framers’ handiwork. Nevertheless, the conservative who takes this position lends a good deal of credence to one of the main theses of revisionism that has remained constant over the years.
The revisionist position seems reasonable enough. A pure or pristine republican form—that is, one that conforms with certain modern definitions of republicanism—would by definition have to be structured or built in a manner consistent with the principles of political equality and majority rule. This alone means that there could be no place in such a system for separation of powers such as that built into that Philadelphia Constitution. But having granted this much, we are still left with the question of motives. Put otherwise, we can readily grant that the Constitution deviates from “model” republicanism as we would define it today, but we do not have to concede the revisionist points concerning the motives of the Framers. Indeed, what we see upon investigating the relationship between republicanism and separation of powers is that the revisionists’ contentions simply lack any solid foundations.
That the Framers’ conception of this relationship was worlds apart from that of the revisionists is readily apparent from even a cursory examination of the relevant documents. Madison, reflecting a widely shared view, conceived of republicanism in terms that would embrace the principle of separation of powers. For him the test of republicanism came down to whether those holding office, either by election or appointment, were accountable, either directly or indirectly, to the “great body of the people,” not to any privileged or “favored class of it.” On the face of it this would indicate that the Founders were not obsessed with “fine tuning” the constitutional machinery along lines suggested by the ideological pronouncements of the Warren Court. To their way of thinking, in other words, the issue at stake was whether sovereignty resided in the people, not whether the institutions would precisely mirror the opinions of the people or whether they possessed the authority to instantly enact the will of the majority, two factors that today seem to be uppermost in the minds of “reformers.” They seemed to believe that as long as the system provided for popular sovereignty in the sense described by Madison, it would eventually move in the direction desired by or acceptable to the greater number. In this regard, their views toward the system can legitimately be compared to those we frequently encounter today with respect to the Supreme Court, namely, that over the long haul it will “follow the election returns” by which we mean it will not get too far “ahead” or too far “behind” the positions of persistent majorities. Beyond this, we may say, they were interested in institutions that would produce and reflect a consensus—a goal not incompatible with republicanism but one that, nevertheless, seems somewhat foreign to the mechanistic concerns of modern republican theory.
There are other perspectives from which we may view the relationship between republicanism and separation of powers, none of which supports the revisionists’ claims. As I point out below, the most significant deviation from the republican principle—the equal representation in the Senate—is the result of a necessary compromise without which the Constitution would probably never have seen the light of day. But, in any event, it was a compromise agreed to with the greatest of reluctance on the part of the strong “nationalistic” contingent at the Convention, and for this reason alone could scarcely have been an integral part of any plan to entrench vested interests of the kind prominently mentioned by the revisionists. This example, however, poses a broader concern for which neither critics nor revisionists seem to have good answers: who, in fact, does benefit from the deviations from republicanism necessitated by the separation of powers? Again, it is one thing to say that there is a deviation, still another to say that the deviation was designed to benefit a specific, identifiable interest.
What I have said to this point takes on added force if we recall that the extended republic theory relies on “natural” or “given” factors to remedy the republican disease of majority faction; namely, on the multiplicity and diversity of interests that inhere in the extended republic. A point often overlooked is that this theory does not call for a separation of powers, judicial review, a bill of rights, or any constitutional barrier or mechanism to control the effects of faction. Consequently, the revisionists, conservatives, and others who view separation of powers as one of the principal devices designed to curb majorities are, in fact, superimposing their conceptions of the constitutional system on the Founders and then blaming or praising them, as the case may be, for something they did not do—not, at least, in the sense the revisionists, critics, and conservatives think.
While these and related matters will be explored more thoroughly below, what is apparent from what has been said is that separation of powers was primarily intended to perform a function other than controlling majorities. That function, as I make clear below, was to prevent tyranny and to prevent the governors—those who wield the powers of government—from ruling arbitrarily and capriciously to abuse and oppress the governed. And to accomplish this, they believed that the legislative, executive, and judicial functions had to be exercised by separate departments. This much at least must be understood to comprehend fully the role of separation of powers in the context of the difficulties confronting the Founders. To begin with, we see why the Founders had to scrap the Articles entirely rather than simply amend them. Once the decision had been made to establish a truly effective national government to provide for common goals such as defense, a concentration of powers in a unicameral legislature was, by their best lights, simply out of the question. Or, to put this the other way around, the structure of the Articles was perfectly satisfactory as long as the government could not effectively exercise the powers granted to it.
Certainly one of the chief problems facing the Framers was how to reconcile republicanism with separation of powers. But for them this problem was of a different order and character from what we might imagine on the basis of the revisionists’ understanding. The Framers’ chief concern was to prevent the Congress, in their view the predominant branch in our system, from usurping the executive and judicial functions. In retrospect, we can say that they followed a policy of weakening the strong (Congress) and strengthening the weak (the President and the Court), a policy that today we misleadingly label “checks and balances.” Thus, for example, as part of the strengthening process, they gave the President a qualified veto and provided judges with life tenure during good behavior. To weaken Congress, they divided it. Yet, for all of this, they did not believe they had compromised republicanism, at least as they understood the term.
With this before us, I believe, we can appreciate one of the highly significant but subtle distortions of the Founders’ thought that have contributed to our present constitutional crisis. It is a small step from the process I have described—weakening the strong and strengthening the weak—to the belief that the Framers designed a system wherein each of the departments should be equal and coordinate. Such a view, though widely accepted today, is at fundamental variance not only with the Framers’ thought but with the plain language of the Constitution itself. However, leaving all of that to one side, once this step is taken it intrudes upon the traditional constitutional morality, and an opening is provided for what we have witnessed in recent decades: all branches being equal, one branch can lay claim to the powers of another, particularly when the advancement or achievement of our “rights” hangs in the balance. Of course, on the Framers’ showing, this is very dangerous business because it can result in the concentration of powers they struggled, with good reason, to avoid. And it becomes even more dangerous when we mix in the further distortion concerning the Framers’ views on judicial review because then, as we shall see in due course, the way is opened to make the weakest the strongest; in other words, to invert completely the Founders’ design.
Finally, I should say a few words about my terminology in the analysis that follows. I use the expression “governmental tyranny” to describe what it is that the Framers sought to avoid through the separation of powers. Strictly speaking, and this is plain from the text of The Federalist, what the Framers sought to avoid was tyranny, pure and simple. I use the expression “governmental tyranny” because I think it important to distinguish between government oppression and “majority tyranny” in order to emphasize my basic point in answering modern critics of the Constitution. Now it is interesting to note that the term “majority tyranny” is never used by Publius because, we may surmise, the term tyranny had a very special meaning that rendered majority tyranny, as distinct from rule by majority factions, virtually impossible. The imprecision of terminology that abounds in our texts only reflects the fact, as I intimate in my conclusion, that few have taken the trouble to understand the system as the Founders understood it.
SEPARATION OF POWERS AND THE MADISONIAN MODEL: A REPLY TO THE CRITICS
Central to most assessments of the democratic character of our constitutional order is the doctrine of separation of powers. Many, if not most, students of the American system have accepted the proposition that separation of powers was intentionally fused into our system to thwart majority rule in one way or another.1 Indeed, the most persistently advanced democratic “reforms” of our institutions call for extensive modification or elimination of our system of separated powers because of the barriers that such a separation seems to pose to the implementation of the majority will.2
While populists around the turn of the century—James Allen Smith being the most notable—were among the first to give currency to the notion that the Constitution is a “reactionary” or “undemocratic” document,3 modern students, going well beyond the populists’ preoccupation with constitutional forms, have focused their attention on what is fashionably called the “Madisonian model” 4 and its underlying assumptions regarding the need, utility, and purpose of two of its most important elements, checks and balances and separation of powers. Their findings in one crucial respect are the same as those of the populists: through the constitutional mechanism of separation of powers, Madison sought to protect “certain minorities whose advantages of status, power, and wealth would, he thought, probably not be tolerated indefinitely by a constitutionally untrammeled majority.” 5 In a similar vein, Eidelberg writes: “Madison wished to institute a system of checks and balances to preserve the Republic from the leveling spirit.” 6 James MacGregor Burns puts this conclusion even more forcefully:
[Madison] was not content with a flimsy separation of power that lunging politicians could smash through like paper. He was calling for barricade after barricade against the thrust of a popular majority—and the ultimate and impassable barricade was a system of checks and balances that would use man’s essential human nature—his interests, his passions, his ambitions, to control himself .... It was a stunning solution to the Framers’ problem of checking the tyranny of the majority.7
Modern criticism, however, has gone beyond the populists, principally by pointing out that Madison, in his efforts to prevent tyrannical majorities from ruling, relied principally on institutional checks and balances while largely ignoring the critical role of social checks and balances in a pluralistic society. Dahl writes in his widely acclaimed Preface to Democratic Theory:
The Madisonian argument exaggerates the importance, in preventing tyranny, of specified checks to governmental officials by other specified governmental officials; it underestimates the importance of inherent social checks and balances existing in every pluralistic society. Without these social checks and balances, it is doubtful that the intragovernmental checks on officials would in fact operate to prevent tyranny; with them, it is doubtful that all of the intragovernmental checks of the Madisonian system as it operates in the United States are necessary to prevent tyranny.8
And along these same lines Burns critically asks certain very crucial questions with which we shall have occasion to deal later:
If, as Madison said, the first great protection against naked majority rule was the broader diversity of interests in a larger republic and hence the greater difficulty of concerting their “plans of oppression,” why was not this enough? Why would not any popular majority representing such a variety of interests perforce become so broad and moderate in its goals as never to threaten any major or even minor or individual interest? Why was it necessary to have what Madison called “auxiliary precautions” of checks and balances built right into the frame of government?9
In sum, according to these critics, either Madison didn’t or couldn’t perceive the crucial role of social checks and balances, or he did perceive this role but persisted in his efforts to establish and justify even further unnecessary checks and balances to thwart majority rule.
My purpose here, quite simply, is to challenge these interpretations. This task is not an easy one, largely because the critics of the Madisonian model have been selective and partial in their elaboration of the model, especially with respect to the role and purpose of separation of powers. To put this otherwise, the Madisonian model is an intricate construct that attempts to realize and accommodate more than one crucial value or goal. Yet, more frequently than not, the present-day practice has been to judge the model on the basis of the degree to which it accords with a single value, namely, political equality, and its derivative majority rule. As we shall see, this practice not only distorts assessment of the model’s democratic character, it also, and more importantly, excludes from our purview fundamental, normative considerations that better enable us to comprehend the model. At the very least a fuller examination of separation of powers and its place in the Madisonian model would seem prudent before advancing wholesale reform of our present institutions and practices.
With this end in mind, we shall examine the Madisonian model from three perspectives: (1) the purpose of separation of powers; (2) the compatibility between separation of powers and majority rule; and (3) the purposes of bicameralism (an integral component of Madison’s separation of powers system) and their compatibility with majority rule. Throughout this analysis, I will deal with the contentions raised by Madison’s critics, principally those of Dahl and Burns.10
Separation of Powers
“The accumulation of all powers legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective,” Madison wrote in Federalist 47, “may justly be pronounced the very definition of tyranny.” Of this proposition he went so far as to say, “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty” (249).
Not only do the records of the Philadelphia Convention seem to bear out this assessment, the political writings of such figures as Adams and Jefferson, whose theories were otherwise markedly different, also reveal fundamental agreement on the proposition that accumulation of powers and tyranny were inseparable.11 Moreover, as Madison correctly noted in Federalist 47, all but two of the states during the revolutionary era had attempted, albeit with very limited success, to provide in one fashion or another for separation of powers. In fact, in six of these state constitutions we even find specific declarations to this effect.12 Beyond this, despite the in-built provisions in the Constitution designed to insure separation of powers, three of the last four of the original thirteen states to ratify the Constitution (Virginia, North Carolina, and Rhode Island) submitted recommendatory amendments designed, so it would seem, to reinforce this principle. The wording in each case was the same: “the legislative, executive, and judiciary powers of Government should be separate and distinct.” 13
While there did seem to be virtual unanimity on the need for separation of powers, the convention debates, as well as the state constitutions, reveal marked differences concerning the specifics of its implementation.14 What is crucial to note, however, is that the Framers (and Madison as well) had consciously divorced the concept of separation of powers from that of the “mixed regime” with which it had been historically associated.15 That is, the Framers retained essential elements of Montesquieu’s teachings regarding the principle of separation of branches, but rejected the idea that the branches should represent the dominant social “classes” such as the democratic, aristocratic, and monarchical. In large part, this rejection was simply dictated by the realities of American society which did not possess the social divisions appropriate for a mixed regime as envisioned by Montesquieu. Charles Pinckney, among others, stressed this very point at the Philadelphia Convention:
[the United] States contain but one order that can be assimilated to the British Nation, this is the order of Commons. They will not surely then attempt to form a Government consisting of three branches, two of which shall have nothing to represent. They will not have an Executive and Senate [hereditary] because the King and Lords of England are so. The same reasons do not exist and therefore the same provisions are not necessary.16
Likewise, it is clear that the goal sought through separation of powers was the avoidance of governmental tyranny—a goal long associated with the concept of a division of powers. Aristotle, for instance, provides us with an early example of a perceived relationship between a union of powers and tyranny. Tyranny, a perverted form of “perfect monarchy,” he associated with capricious and arbitrary government wherein all powers, as we conceive of them today, were vested in the hands of one. “No freeman,” he wrote, “if he can escape from it, will endure such a government.” 17
John Locke expanded upon Aristotle’s formulation and provided us with the more modern conception of governmental tyranny:
It is a mistake to think this fault is proper only to monarchies; other forms of government are liable to it as well as that. For wherever the power that is put in any hands for the government of the people and the preservation of their properties is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it, there it presently becomes tyranny, whether those that thus use it are one or many.18
The link between Locke’s thought, as well as Aristotle’s, and American thought during the period preceding the adoption of the Constitution, is unmistakable. The Essex Result provides one of the most detailed elaborations on the necessity of a division of powers to avoid governmental tyranny:
If the three powers are united, the government will be absolute, whether these powers are in the hands of one or a large number. The same party will be the legislator, accuser, judge and executioner; and what probability will an accused person have of an acquittal, however innocent he may be, when his judge will also be a party.19
Moreover, any union of two powers was viewed as producing the same effect. If the legislative and judicial powers were joined, the laws would be “uncertain,” and they would reflect on the “whims,” “caprice,” or “the prejudice of the judge.” If the legislative and executive powers were united, “the security and protection of the subject would be a shadow—the executive power would make itself absolute, and the government end in a tyranny.” 20
That such a view of the matter was shared by Madison also seems beyond doubt. Quoting from Montesquieu’s Spirit of the Laws, Madison in Federalist 47, the first essay devoted exclusively to separation of powers, endorses this very same line of reasoning:
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author (251).
We may say, then, that the chief end sought through separation of powers was avoidance of capricious and arbitrary government. The end, however, can be stated more precisely and positively. Article XXX of the Massachusetts Convention of 1780, in which we find the injunction that no branch shall exercise the functions of another, concludes “to the end it may be a government of laws and not of men.” 21
We have before us three facts that bear directly upon the modern interpretations of the Madisonian model to which we have referred. First, Madison’s reference to tyranny in Federalist 47 is to governmental tyranny. This tyranny, quite simply, involves those in positions of authority using their powers arbitrarily and capriciously to abuse the nongovernmental portion of society. In this situation, the conflict comes down to the governors versus the governed as distinct from the problem of majority factions oppressing minorities discussed in Federalist 10. As obvious as this may seem, one of the chief weaknesses of modern criticism of the Madisonian model has been its failure to make this distinction regarding the source and kinds of tyranny.22 Dahl, for instance, manages to lump Madison’s concern with majority factions together with his treatment of the problem of governmental tyranny.23 He does this by transforming Madison’s explicit definition of tyranny in Federalist 47 (accumulation of all governmental powers) to conform with his own definition (“severe deprivation of a natural right”)24 —a definition best suited for an analysis of Federalist 10 and the problem of majority factions. Dahl then treats Madison’s solutions to governmental tyranny as if they were solutions to majority tyranny as well.
The predictable result is that Dahl’s analysis and presentation, not Madison’s, is difficult to follow. For instance, the charge that Madison underestimated the importance of social checks and balances is manifestly false, particularly if one looks to Federalist 10 and his “solution” to the problem of majority tyranny. In this essay Madison cites such factors as the multiplicity of interests, the mutual suspicions that inevitably arise between interests, and the probability that representatives will be men “who possess the most attractive merit, and the most diffusive and established characters,” as barriers to majority tyranny. At no point in the essay, save possibly with his brief mention of federalism, does Madison allude to institutional structures as barriers to majority rule, or conversely, as protectors of vested minorities. In sum, we do not find recourse to institutional barriers because Madison believed the social checks and balances inherent in the extended republic were an adequate protection against majority tyranny.25 When we reach Federalist 47, however, Madison is obviously dealing with tyranny of a different order, namely, governmental tyranny. And because this tyranny is of a different order, his solution to the problem is markedly different and does concern itself to a great degree with the constitutional checks and balances to which his critics refer. But, given the nature of his concern—control of a government or of those with governmental powers—it is impossible to see how he could have done otherwise.
This particular difficulty becomes more obvious when we turn to the major concern expressed by Burns, namely, if, as Madison indicates in Federalist 10, the diversity of interests is a sufficient guard against majority factions or majority tyranny, why then did Madison erect even further barricades against majority rule with a system of checks and balances?26 Burns’s question would be perfectly legitimate save for the fact that Madison was worried about two sources of tyranny, majority tyranny and, as I have shown, governmental tyranny. Burns has, along with Dahl, assumed that Madison’s purpose in advocating a system of checks and balances was to thwart majority rule. But the assumption, as the text of The Federalist makes abundantly clear, is not warranted. Indeed, after the beginning two-thirds of Federalist 51, which deals with his solution to the problem of how to maintain the necessary partition of powers (in order to control, in Madison’s words, “the abuses of government”), Madison changes focus and expressly identifies two distinct sources of tyranny (267). He writes: “ Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers [a matter that he has just finished treating in the preceding part of this essay], but to guard one part of the society against the injustice of the other part [the problem of minority and majority faction] ” (268). What follows is unmistakably a reiteration of his “extended republic” theory more elaborately set forth in Federalist 10. Even the most cursory reading reveals this, as the following quote—the latter part of which is most interesting in light of the foregoing analysis—illustrates:
In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; and there being thus less danger to a minor from the will of the major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself (269).27
A second point is this: through separation of powers, Madison sought to avoid governmental tyranny which, as we have seen, is closely related to arbitrary and capricious government. We can, of course, conceive of situations in which concentration of powers will not result in governmental tyranny—that is, those possessed of all governmental powers would not place themselves above the law or rule in their own private interests. So, it is fair to assume, could Madison. Yet Madison was concerned with fundamental principles on which to establish lasting constitutional procedures and forms. Therefore, we can readily imagine him responding that such instances would be exceptional, so exceptional as to prove the rule. Or, we can also imagine his answer to have taken this form: “Over an extended period of time a concentration of power will inevitably result in governmental tyranny. Benevolent dictators and philosopher kings are hard to come by.” 28
Madison’s definition of tyranny presented in Federalist 47 is not ambiguous or meaningless, except, perhaps, to the extreme positivist. Dahl’s difficulty in this respect is, again, of his own doing. Having supplied Madison with a definition of tyranny (“severe deprivation of a natural right”), he finds tyranny to have “no operational meaning” and “Madison’s own definition ... a trivial one.” 29 Whatever merit Dahl’s analysis of the meaning of tyranny may have in relation to majority factions is not applicable to governmental tyranny. Madison sought to avoid capricious and arbitrary government, which is characteristic of a government of men, not of laws.
Finally, and most importantly for our subsequent analysis, what is apparent, not only from those portions of The Federalist that deal with separation of powers but also from the work as a whole, is Madison’s conviction that separation of powers is a necessary (thought not sufficient) condition for nontyrannical government. This, as we shall see, imposes a limitation on his theoretical development because other values and concerns have to be modified or reconciled with this basic requirement in mind.
Separation of Powers and Majority Rule
As emphasized above, critics of the Madisonian model have been quick to point out the incompatibility between separation of powers and majority rule. In this context the critics view separation of powers as a device to protect minorities of wealth, status, and the like, and, as such, a gross departure from the republican principle of political equality.
In retrospect it is obvious that Madison did have to deal with two incompatible goals, though from his vantage point he had no qualms about which goal should take precedence. But the incompatible goals were not, as some modern critics assert, majority rule and minority rights.30 In Madison’s mind, at least, these goals were not incompatible. The very first paragraph of Federalist 10, where he proposes a solution to the problem of majority factions, reveals this:
Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular government never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail therefore to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure of it (43, emphasis added).
Madison proceeds then to set forth his famous theoretical “solution” to this problem by showing how the need for representation coupled with the multiplicity and diversity of interests in an extended republic by themselves provide “a republican remedy for the diseases most incident to Republican Government” (48). Moreover, we repeat, his solution does not involve institutional or constitutional mechanisms.
At various points in The Federalist and other writings, Madison seems fully aware of pure republicanism and what the structure of a model republican government would involve. Why, then, did he support checks and balances, which to all outward appearances would only serve to diffuse or dilute majority control and direction of government, essential elements of republicanism? In asking this question, perhaps the most important question relative to the criticisms directed at his model, we are focusing on one incompatibility of value goals that takes us a long way toward understanding the model and the form it takes. The answer, in light of what we have said in the previous section, is this: adequate provision for separation of powers, necessary for a nontyrannical government, imposes demands that in certain particulars are at variance with the principles of pure republicanism.
Let us tend carefully to the nature of this incompatibility, lest it be understood to mean that separation of powers imposes requirements that were intended to prohibit majority rule and protect specific minorities, as the critics contend. We can do this best by specifically considering the problems associated with the legislative branch which, on all sides, is considered the mainspring of the republican principle and whose very bicameralism is now viewed by contemporaries as prima facie evidence of the undemocratic character of the Madisonian model.
We cannot overestimate Madison’s concern that the legislative body represented the greatest threat to separation of powers. On July 17 at the Philadelphia Convention, for instance, Madison set forth a theme that was to recur, principally in Federalists 48 to 50, where he discussed how to preserve the “necessary partition of powers”:
Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability of encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Government therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.31
This passage also reveals Madison’s desire to maximize simultaneously two goals: republicanism and separation of powers.
Madison’s concern on this score was, beyond any question, based on the fact that the legislative body, consonant with republican principles, would possess the vast bulk of the substantive powers of government. The problem, therefore, of guarding against a concentration of powers in a republican government, he perceived, differed from that encountered in “mixed” monarchies. “The founders of our republics,” he writes in Federalist 48, have been so preoccupied with the “danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate” that they have overlooked “legislative usurpations” which, in a republic, pose the greater threats to liberty (255–56).
Essays 48, 49, and 50 assume particular significance in understanding the answer that Madison eventually provides in essay 51. More importantly for our purposes, they deal with the question of what role a majority is to play in maintaining separation of powers, which largely comes down to controlling the legislative branch vis-à-vis the other branches.
What, briefly, does Madison say in these essays? First, he contends in 48 that a constitutional provision to the effect that each department should stay within its boundary will definitely not suffice to preserve the necessary separation. Why? For several reasons. “Experience assures us, that the necessary efficacy of [such a] provision has been greatly over-rated; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government” (255). And because of the number, nature, and importance of the powers vested in the legislature by the Constitution,
it [the legislature] can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure, will, or will not extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature; and the judiciary being described by landmarks, still less uncertain, projects of usurpation by either of these departments, would immediately betray and defeat themselves (256).
Furthermore, because the legislature “alone has access to the pockets of the people, and ... a prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former” (256).
Second, in Federalist 49 Madison addresses himself to the question of whether occasional appeals initiated by two-thirds of the members of two of the three branches calling for a constitutional convention would serve to maintain the necessary separation of powers.32 Again, he is something more than skeptical. Such occasional appeals, he argues, could be thwarted by a one-third minority in any two branches; they would carry with them the implication that the government was defective, thereby seriously undermining that popular veneration of government which is necessary for “stability”; and, what is more, they would serve to arouse the “public passions” to a dangerous degree. “But the greatest objection of all,” writes Madison, “is that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitutional equilibrium of the government.” Judges and members of the executive branch are relatively few “and can be personally known to a small part only of the people.” In contrast, the legislators are “numerous,” “are distributed and dwell among the people at large,” and have “connections of blood, of friendship and of acquaintance [which] embrace a great proportion of the most influential part of the society.” Given these conditions, “it could hardly be supposed” that the judicial and the executive branches “would have an equal chance for a favorable” resolution of any conflict with the legislature (261).
Finally, in Federalist 50, he considers whether periodic appeals to the people, at fixed intervals, would preserve the necessary partition. He also finds this proposal inadequate. If the interval between appeals is a short one, “the measures to be reviewed and rectified, will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions.” On the other hand, if the interval is a relatively long one, the “distant prospect of public censure” probably would not serve as an adequate restraint on the more immediate motives of that department bent on encroachment (263). By way of illustrating his contentions regarding periodic appeals, he discusses the experience of Pennsylvania’s “council of censors.” This popularly elected council, which met in 1783–84, was, as Madison observes, charged with the responsibility of determining “whether the Constitution [of Pennsylvania] had been violated and whether the legislature and executive departments had encroached on each other.” The results of this procedure, he notes, were predictable and far from satisfactory: the men who were elected to judge of the actions of the legislative and executive branches were, to a great extent, those who had served in those very branches at the time the questionable actions were committed; party animosities in the council were so severe that “ passion, not reason ” seemed to dominate the proceedings; and the legislature felt no obligation to abide by the decisions of the council (264).
What can be said of Madison’s analysis relative to republicanism and separation of powers? The most striking fact is that, for reasons specified, Madison is of no mind to allow popular majorities to decide disputes between the branches of government. This mode of resolution, he felt, was certain to result in legislative tyranny because the experiences at the state level had shown that this branch would most likely commit the transgressions and then would, for all intents and purposes, act as the judge of its own actions. Thus, preservation of the partition of powers necessitated this departure from the republican principle.
More revealing, in light of the contentions advanced by some contemporary students, is the nature of this limitation. First, majority control is inhibited only with respect to resolution of disputes between the branches on matters involving their sphere of authority. This leaves popular majorities as free as the most ardent populist could wish to initiate and enact any social policy to their liking. In this regard, Madison’s limitations scarcely touch upon curbing majority tyranny, and then only by indirection.
Second, and equally important, Madison is not seeking to curb majority initiative. There is no intimation that a popular majority itself would push for proposals designed to obliterate the partition of powers.33 On the contrary, it is the legislators themselves who, because they are operating as a small body in a context relatively free from the restraints inherent to an extended republic,34 would press forward with such schemes and then, after the fact, seek popular endorsement. Thus, the limitation is not directed at curbing majorities in the usual sense of that term. And, in this connection, we cannot help but note Madison’s total silence in these essays about separation of powers being in any way related to prevention of majority tyranny.
Finally, this very partial limitation on the sphere of majority decision making is consonant with a broader theory of constitutionalism which Madison and most of the Framers shared.35 Within the confines of this theory, fundamental law or the Constitution could be changed only through an act as authoritative as the adoption of the Constitution itself (i.e., the amendment process). Separation of powers, inseparable as it is from the constitutional fabric, would certainly seem, on these grounds, to be immune to alteration or abolition by simple majorities. If, that is, popular majorities could legitimize basic alteration in the relative powers of the three branches, the way would be open to allowing basic constitutional alterations by simple legislative majorities.
The solution to the problem that Madison set out to resolve (how to maintain in practice the necessary partition of powers) is, as is well known, contained in Federalist 51. It “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 defence must in this, as in all other cases, be made commensurate to the danger of attack.” This would seemingly obviate the need for frequent or periodical appeals to the people. And Madison in elaborating on this solution continues: “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 reflection on human nature?” (267)
While an evaluation of this solution is beyond our purposes here, two comments relative to it are in order:
1. Madison does rely upon constitutional or institutional mechanisms for maintenance of separation of powers. His reference to the “necessary constitutional means” in the context of the passage cited above is evidence of this. However, he is far from oblivious to the need for the proper type of internal motivation, a distinctly noninstitutional factor, to achieve this end. References to “personal motive,” “ambition” counteracting “ambition,” and the connection between the “interest of the man” and “the constitutional rights of the place” are abundant evidence to that effect. He may well have reasoned that proper constitutional provisions would unleash, protect, and even cultivate behavior patterns conducive to the end he sought.
Yet—and to the best of my knowledge this is a matter that has not been explored thoroughly—Madison must have presumed limits to the behavior he anticipated. His discussion, couched as it is in terms of conflict and competition, might well lead one to believe that such would be the normal state of affairs between the branches. But clearly, if this were the case, adoption of the model would be an open invitation to stalemate and catastrophe. For this reason, we can safely surmise that one unarticulated premise of the Madisonian system must have been that the members of the branches would hold substantially the same views regarding the legitimate domain of the three branches and that, moreover, these members would show a high degree of forbearance, high enough at any rate not to repeatedly push the system to the brink of collapse.
2. Madison’s solution is, in his own words, directed to controlling the “abuses of government.” He acknowledges at the end of this particular passage the more general maxim of republican government— “dependence on the people is no doubt the primary control on government” —but he goes on to say, consistent with his teachings on this point, that “experience has taught mankind the necessity of auxiliary precautions” (267). Clearly the phrase “auxiliary precautions” refers to additional obstacles to governmental abuses and not to majority tyranny.36
Bicameralism and Majority Rule
For critics of the Madisonian system, as we have mentioned, the bicameral structure of Congress seems to provide incontrovertible evidence of Madison’s hostility toward republicanism and his desire to protect vested minorities. At first glance, the case is a strong one which, without injustice, we may put as follows: separation of powers does not in theory, at least, require a bicameral legislature. Indeed, a bicameral legislature is a significant deviation from the republican principle, for it divides the purely democratic element of the Constitution, and this can only serve to diffuse, blunt, or obfuscate the will of popular majorities. In fact, while separation of legislative, executive, and judicial powers does not inherently represent a departure from pure principles of republicanism, bicameralism does. Moreover, a second or “upper” chamber cannot help but develop a “clubbishness” or sense of superiority that will set it apart from the “lower” house and transform it into a more “aristocratic” body with views markedly different from those of the “lower” chamber.37
At face value, these and like contentions are deceptively convincing, the more so as a second chamber is historically associated with institutions representative of the aristocratic class.38 Yet, insofar as the Madisonian model is concerned, such views of the second chamber are far from the mark and serve only to conceal an important theoretical dimension of Madison’s theory.
We must, in treating of bicameralism and its purpose, once again bear in mind Madison’s overriding concern to maintain separation of powers in order to avoid governmental tyranny. This, we may say, was his principal reason for advocating a divided legislature. So much we find in Federalist 51, where he writes of the impossibility of giving “each department an equal power of self-defence” because in republican governments “the legislative authority, necessarily, predominates.” Therefore, he writes, the “weight of the legislative authority requires that it should be ... divided” (267). In this assessment he was undoubtedly influenced by the fact that virtually all the major powers of government, consistent with the republican principle, were vested by the Constitution in Congress.
The need for two chambers to prevent governmental abuse was a recurrent theme in his thoughts and writings. In speaking to the Convention on June 26 he observed:
A people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of Government most likely to secure their happiness, would first be aware, that those charged with the public happiness, might betray their trust. An obvious precaution against this danger would be to divide the trust between different bodies of men, who might watch and check each other.39
A second chamber, he noted on this occasion, would serve “to protect the people against their rulers.”
Again, in Federalist 62, when dealing specifically with the justifications for the Senate, he writes:
First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it, may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it (321).
Clearly we see that in Madison’s estimation the requirement of bicameralism necessitated a deviation from the pure republican structure. And we can also see clearly that this particular deviation is thoroughly consistent with and best understood in terms of his broader theory concerning the need to avoid governmental tyranny, as well as his fear of legislative usurpation. Moreover, his support of bicameralism is quite removed from any concern with majority tyranny or minority “rights” and, on the positive side, may even be viewed as an effort to preserve conditions necessary for popular majorities to form and operate free from governmental control.
While his concern with preventing governmental tyranny would alone justify his defense of bicameralism, Madison offers still another reason for it that does bear upon the problem of majority tyranny. It is at this point that bicameralism fits hand in glove with his concern to prevent majority tyranny. Since this coincidence clearly bears upon the republican character of the Madisonian model, I shall examine it with some care.
In his June 26 remarks at Philadelphia, Madison notes that a second end to be served by bicameralism is “to protect the people against the transient impressions into which they themselves might be led.” And, in Federalist 63, after surveying six advantages of bicameralism “only as they relate to the representatives of the people,” he continues:
To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defence to the people against their own temporary errors and delusion. As the cool and deliberate sense of the community ought, and actually will in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people themselves, until reason, justice and truth, can regain their authority over the public mind (325–26)?
As if by way of answering those, such as Burns, who ask why the “solution” provided in Federalist 10 is not a sufficient barrier to majority tyranny, Madison writes:
It may be suggested that a people spread over an extensive region, cannot like the crowded inhabitants of a small district, be subject to the infection of violent passions; or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have on the contrary endeavored in a former paper [Federalist 10], to show that it is one of the principal recommendations of a confederated republic. At the same time this advantage ought not to be considered as superseding the use of auxiliary precautions (326).
In the framework of Madison’s thought, this “auxiliary precaution” is, so to speak, a “bonus” derived from his perceived need to protect the people from their government through bicameralism. Put otherwise, though needed to guard against governmental tyranny, the second chamber also provides a further “auxiliary precaution” against majorities. In these terms, which coincide with the manner in which Madison presents his theory, we must seriously question what seems to be a commonly held presumption to the effect that a second chamber was necessary quite apart from any role it might play with respect to the problem of majority tyranny and minority “rights.”
We gain a further insight into this relationship between republicanism and bicameralism by examining the function the Senate is to perform in curbing majorities. Here the only deviation, if it can fairly be called that, from the republican principle relates to a matter of delay in responding to the wishes of a popular majority until such time as “reason, justice and truth” can “regain their authority over the public mind.” He seeks to insure that “the cool and deliberate sense of the community” will predominate—an end that, we may surmise, was primarily fostered by conditions associated with an extended republic, which likewise necessitated delay in the process of the formation of majorities.
Moreover, if we look to the factors that contribute to the Senate’s effectiveness in performing this delay function, we see that they are fundamentally noninstitutional. In his speech of June 26 which bears directly upon majority factions and the role of a second chamber, Madison inquires, “How is the danger in all cases of interested coalitions to oppress the minority to be guarded against?” His answer: “Among other means by the establishment of a body in the Government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.” 40
The Senate would serve as an institution composed of a “temperate and respectable body of citizens” who would, because of their “wisdom and virtue,” be capable of cultivating those “internal restraints” so necessary for the avoidance of majority tyranny. Failing this, the Senate would pose no difficulties for persistent majorities. In Madison’s words, there is an “irresistible force possessed by that branch of a free government, which has the people on its side.” He continues:
Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature, the affections and support of the entire body of the people themselves (63:329–30).
Equally important, Madison does not urge a second house with in-built or entrenched minorities. Quite the contrary. Madison was most critical of the Connecticut compromise principally on grounds that it did deviate from the republican principle. His exchange with Paterson at the Convention on July 9 indicates this. Paterson in discussing “the true principle of Representation” calls it “an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient meeting of the people themselves.” Madison, in response to this, “reminded Mr. Paterson that his doctrine of Representation which was in its principle the genuine one, must for ever silence the pretensions of the small States to an equality of votes with the large ones. They ought to vote in the same proportion in which their citizens would do, if the people of all the States were collectively met.” 41
By all evidence, Madison had to “swallow hard” in accepting the Connecticut compromise. In Federalist 62, he remarks that the compromise “is allowed on all hands to be the result not of theory, but of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable” (320). But the proposed constitution, even with provision for equality of state representatives in the Senate, was, in his judgment, a “lesser evil” than the existing form of government under the Articles.
More to the point—save for southern sectional interests—Madison could not conceive of any interest in need of a structural protection in the Senate that might necessitate a deviation from the republican principle in either the mode of election or representation:
He admitted that every peculiar interest whether in any class of citizens, or any description of States, ought to be secured as far as possible. Wherever there is danger of attack, there ought be given a constitutional power of defence. But he contended that the States were divided into different interests not by their difference of size, but by other circumstance; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves.42
Thus, he could write of the Connecticut compromise in Federalist 62:
It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defence which it involves in favor of the smaller State, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to a peculiar danger (320).
Yet, Madison’s very line of reasoning on this point could be used to argue that the Connecticut compromise, though a deviation from republicanism, did not, in fact, entrench specific minorities. If, that is, no great dissimilarities of interests were to be found between the small and large states, there is no reason, a priori, to assume that this body would act to protect any specific minority or to thwart legitimate majorities. Perhaps for this reason, Madison could write in good conscience, “it is not impossible that this part of the Constitution may be more convenient in practice than it appears in contemplation” 43 (320).
Though the foregoing analysis of separation of powers and its role in the Madisonian model opens upon new avenues for an exploration of the intended roles of the three branches in our constitutional system,44 I shall make just two general observations that are directly related to this specific undertaking.
First, intelligent and meaningful evaluation of the Madisonian model makes sense only to the extent that we “enter” the model itself. This is true with respect to a full understanding of the values that Madison sought to maximize, the difficulties he encountered in this enterprise, and the evaluation of the model in terms of principles or norms such as those associated with liberal democracy. For instance, as this chapter illustrates, in Madison’s framework of thought there was little to fear from Congress, acting in the capacity of a translator of a deliberate majority will. Nor did he feel that the Congress as constituted would be able to thwart persistent, and thus presumably mature and deliberate, majorities. What he did fear was Congress, with its enormous powers and prestige, acting as a force independent of society and imposing its will—much in the fashion of elected despots who presume to articulate the “general will” —on the whole society. Bearing this in mind, we can easily see that from Madison’s point of view a more pristine form of republicanism, such as that advanced by his modem critics, would carry with it the probability of governmental tyranny.
We can state this another way: without effective separation of powers any system of government, even one in which republican values (i.e., political equality and majority rule) are fully realized, will degenerate into tyranny. The problem of governmental tyranny is, then, common to all forms of government. Madison most certainly must have subscribed to these or basically similar propositions. And, given this perception of the matter, we can scarcely fault him for his advocacy of separation of powers. But Madison’s concerns went well beyond this: he had to “reconcile” the need for separation of powers with the principles of republicanism. He can, of course, be faulted for the form his reconciliation finally assumed, but one would have to deny the existence of governmental tyranny in order to ignore the problems it poses, particularly in the deliberate construction of a republican form of government.
This leads to a second general and related observation. One of the great hindrances to getting “inside” the Madisonian model, it would seem, has been a preoccupation with “one value” analysis.45 Such analyses, because they do not grasp the inner dimensions and tensions of the model, ultimately come down to a critique of the model without appreciation or consideration of the fundamental values upon which it rests, no matter how sensible or worthy they may be. Specifically, Madison’s alleged theoretical shortcomings almost invariably relate to deviations from the principles of “liberal democracy” and political equality and its corollary of majority rule.46 Principally on this score, Dahl concludes that Madison’s theory will not bear up under examination and could with relative ease be placed “in the camp of the great antidemocratic theorists,” such as Plato and Lenin. More: his theory centers “on the goal of avoiding majority control” and “goes about as far as ... possible” in this direction “while still remaining within the rubric of democracy.” 47
Clearly, however, Madison’s deviations from political equality, as we have seen, were trivial, the more so when compared with those attributed to him by his critics. More importantly, they were mandated by what Madison perceived to be a requisite for a republic without governmental tyranny. Indeed, the degree to which he was able simultaneously to maximize both the goals of republicanism and the necessary partition of powers is astonishing. Of course, one could say that Madison’s concern with governmental tyranny was unfounded or exaggerated, or that the means he adopted to the end were inappropriate. Nevertheless, I submit, no sensible person immersed in the better part of the Western liberal tradition would ignore the potential danger of governmental tyranny. For this reason, if no other, Madison’s concern still remains a challenge to the modern political theorist.
[1 ]In addition to those works cited below, a very partial listing of works that advance this thesis would be: David Spitz, Democracy and the Challenge of Power (New York: Columbia University Press, 1958); Robert A. Dahl and Charles E. Lindblom, Politics, Economics and Welfare (New York: Harper, 1953); Richard Hofstadter, The American Political Tradition (New York: Knopf, 1948); Vernon L. Partington, Main Currents in American Thought, 2 vols. (New York: Harcourt, Brace, and Company, 1927–30); and Henry Steele Commager, Majority Rule and Minority Rights (New York: Oxford University Press, 1943).
[2 ]The varied and numerous proposals for a more disciplined and responsible party system are the most notable. For an examination of these proposals see Austin Ranney, The Doctrine of Responsible Party Government (Urbana: University of Illinois Press, 1962) and Evron M. Kirkpatrick, “Toward a More Responsible Two-Party System: Political Science, Policy Science, or Pseudo-Science?” American Political Science Review 65 (December 1971).
[3 ]James Allen Smith, The Spirit of American Government (New York: Macmillan, 1907).
[4 ]The term “Madisonian model,” very much in vogue today, was first used by James MacGregor Burns in The Deadlock of Democracy (Englewood Cliffs, N.J.: Prentice-Hall, 1963). Part I of the book, which deals with the obstacles to majority rule posed by the American political system, is entitled “The Madisonian Model.”
[5 ]Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), 31. Hereafter cited as Preface.
[6 ]Paul Eidelberg, The Philosophy of the American Constitution (New York: Free Press, 1968), 153.
[7 ]Burns, 20–21.
[8 ]Preface, 22.
[9 ]Burns, 21. To the best of my knowledge this line of argument was first set forth by E. E. Schattschneider in his Party Government (New York: Farrar and Rinehart, 1942): “Madison’s defense of federalism [his presentation in Federalist 10] annihilates his defense of the separation of powers. If the multiplicity of interests in a large republic makes tyrannical majorities impossible, the principal theoretical prop of the separation of powers has been demolished” (9). As we shall see, however, Madison does not introduce separation of powers as a device to check factious majorities.
[10 ]Most of what follows also critically bears upon salient aspects of the thesis advanced by Paul Eidelberg in The Philosophy of the American Constitution.
[11 ]Jefferson, for example, was most critical of the Virginia Constitution of 1776 precisely because the powers of government were concentrated. In his often-quoted words, “All the power of government, legislative, executive, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.” [ Notes on the State of Virginia, ed. William Peden (New York: W. W. Norton, 1954), 120.] It is also interesting to note that both of Jefferson’s drafts of a constitution for the state of Virginia (1776 and 1783) contain specific provisions for separation of powers.
[12 ]These states were Georgia, Massachusetts, Virginia, Maryland, New Hampshire, and North Carolina. See The Federal and State Constitutions, ed. Francis N. Thorpe, 7 (Washington, D.C.: Government Printing Office, 1909).
[13 ]Documents Illustrative of the Formation of the Union of the American States, ed. Charles C. Tansill (Washington, D.C.: Government Printing Office, 1927) 1028–29, 1045, and 1053. Hereafter cited as Documents Illustrative.
[14 ]On the difficulties surrounding implementation of the doctrine, particularly with respect to the legislative and judicial branches, see Edward C. Corwin, “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention,” The American Historical Review 30 (April 1925).
[15 ]For two excellent works dealing with the development of the doctrine of separation of powers see M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), and William B. Gwyn, The Meaning of the Separation of Powers, Tulane Studies in Political Science, 9 (New Orleans, La.: Tulane University Press, 1965).
[16 ]Documents Illustrative, 273. Because we lacked such social “orders,” Patrick Henry argued that any system of separation of powers would be ineffective. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. Jonathan Elliot, 5 vols. (Philadelphia: J. B. Lippincott Co., 1836), III, 165.
[17 ]Politics, trans. Benjamin Jowett (New York: Modern Library, 1943), Bk. 4, Ch. 11.
[18 ]A Second Treatise of Civil Government (Chicago: Gateway edition, 1955), Ch. 18, Sect. 201.
[19 ]The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, eds. Oscar and Mary Handlin (Cambridge: Harvard University Press, 1966), 327.
[20 ]Ibid., 337–38.
[21 ]Ibid., 448.
[22 ]The distinction between governmental tyranny and majority tyranny which seems to be blurred or ignored by many moderns was not lost upon John C. Calhoun. Throughout his Disquisition he treats these two sources of tyranny as distinct. A Disquisition on Government in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992).
[23 ]Preface, cf. Ch. 1.
[24 ]Ibid., 6–7.
[25 ]This particular confusion is reflected in the following passage from Dahl: “In retrospect, the logical and empirical deficiencies of Madison’s own thought seem to have arisen in large part from his inability to reconcile two different goals. On the one hand, Madison substantially accepted the idea that all the adult citizens of a republic must be assigned equal rights, including the right to determine the general direction of government policy.... On the other hand, Madison wished to erect a political system that would guarantee the liberties of certain minorities whose advantages of status, power, and wealth would, he thought, probably not be tolerated indefinitely by a constitutionally untrammeled majority. Hence majorities had to be constitutionally inhibited” (31). Clearly Madison in Federalist 10 did not see the need to constitutionally inhibit majorities. Nor is his concern in Federalists 47 to 51, which deal with separation of powers, the constitutional inhibition of majority factions. In these papers his evident concern is with guaranteeing the liberties of the people from arbitrary and capricious government (see text below).
[26 ]Cf. Burns, Ch. 1. Burns acknowledges that he is building upon Dahl’s analysis.
[27 ]Notice that Madison, right after addressing himself to the issue of separation of powers, turns immediately to the problem of majority factions and declares this problem “solved” by social checks and balances which have nothing to do with constitutional checks and balances. At no point does separation of powers play a role in curbing majority factions.
[28 ]In this connection, it is highly doubtful that Madison was concerned with majority tyranny as that term is normally used. He was concerned about majority factions that could perform a tyrannous act. Madison does acknowledge at least the possibility of this occurring (“seldom” is his word), but this is quite different from a permanent condition of tyranny associated with a concentration of governmental powers. On these grounds majority tyranny (i.e., the act of a factious majority) is not on the same theoretical plane as governmental tyranny.
[29 ]Preface, 24.
[30 ]Be they economic, property, social, or civil rights. The incompatibility cannot be couched in terms that would suggest that Madison believed in political equality but thought that some people were more equal than others. See Preface, 31.
[31 ]Documents Illustrative, 398–99.
[32 ]In this Madison is addressing himself to a scheme for preserving the independence of the branches set forth by Jefferson in his Notes on Virginia.
[33 ]To this point he writes in Federalist 63, “The people can never wilfully betray their own interests: But they may possibly be betrayed by the representatives of the people: and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act” (326–27).
[34 ]In this regard, Madison writes in Federalist 48 that it is against a legislature “which is sufficiently numerous to feel all the passions which actuate a multitude: yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes ... that the people ought to indulge all their jealousy and exhaust all their precautions” (256).
[35 ]See Federalist 78, where this theory is articulated with respect to judicial review.
[36 ]Burns (22) mistakenly reads this as “auxiliary precautions” against majority tyranny. The error is understandable in light of his basic confusion concerning the purpose of separation of powers.
[37 ]This we submit as a composite argument drawn not only from the critical assessments of the Madisonian model in terms of its democratic character but from legislative behavioral studies as well. In any event, bicameralism certainly opens up the possibility of deadlock, and its very existence suggests that there can be two popular majorities on any given issue, a notion logically inconsistent with majoritarian theory.
[38 ]This, in one form or another, is what most of the critics of the Madisonian model contend bicameralism was intended to do. In this respect, they see the Framers (and Madison as well) attempting to create a “mixed government” along the lines advocated by John Adams. This interpretation was, no doubt, bolstered by Charles A. Beard’s An Economic Interpretation of the Constitution of the United States of America (New York: The Macmillan Company, 1913) which related structural forms to economic interests. See also Malcolm P. Sharp, “The Classical Doctrine of the Separation of Powers,” University of Chicago Law Review 2 (April 1935).
[39 ]Documents Illustrative, 279.
[40 ]Ibid., 281.
[41 ]Ibid., 345.
[42 ]Ibid., 310.
[43 ]Ibid. Madison’s “wish” seems to have been realized. Writes Dahl, “The conclusion seems inevitable that the benefits and disadvantages flowing from equal state representation in the Senate are allocated in an entirely arbitrary fashion and cannot be shown to follow from any general principle.” Pluralistic Democracy in the United States: Conflict and Consent (Chicago: Rand McNally, 1967), 125.
[44 ]For a pioneering effort in this direction see Martin Diamond, “Conservatives, Liberals, and the Constitution,” in Left, Right and Center, ed. Robert A. Goldwin (Chicago: Rand McNally, 1969).
[45 ]I have borrowed this term from Professor Charles S. Hyneman.
[46 ]It is true that the model is also attacked on grounds that its structural forms prevent the realization of economic and social “democracy.” But this is usually viewed as the very object of its presumed deviation from democratic principles.
[47 ]Preface, 32.