Why must the powers of government be separated, and how are they kept separate?

OCR: 2 cited passage(s) are machine-read (OCR) text of old printings; quotations reproduce the stored OCR text, misreadings included.

Reporter's notes: some cited speeches survive only as a reporter's shorthand record, not the speaker's own text.

1. WHAT HE SAID (the record)

Record ledger

• BELIEF (1787-07-21; reporter's paraphrase): James Madison believed that the powers of government must be separated to prevent encroachments by one department on another. He argued that while a constitutional separation on paper is necessary, it is not sufficient, and that additional defensive powers are required to maintain the separation in practice. He supported the idea of giving each department a check to preserve the theoretical separation in reality. "If a Constitutional discrimination of the departments on paper were a sufficient security to each agst. encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper." [1]
• BELIEF (undated): James Madison believed that the powers of government must be separated to prevent the creation of unnecessary offices or tyrannical powers. He argued that allowing the Legislature to appoint any other than their own officers departs too far from the theory of separation of the great departments of government, and that excluding the authors from all share in filling offices or influence in the execution of powers is one of the best securities against such abuses. "The power of the Legislature to appoint any other than their own officers departs too far from the Theory which requires a separation of the great Depts of Government. One of the best securities against the creation of unnecessary offices or tyrannical powers is an exclusion of the authors from all share in filling the one, or influence in the execution of the other." [2]
• BELIEF (undated): James Madison argues that the powers of government must be separated to preserve liberty, but he clarifies that partial agency or control among departments is acceptable. He explains that Montesquieu's concern was not about complete independence of departments, but about the concentration of whole powers in the same hands, which would subvert the principles of a free constitution. "From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying 'There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,' or, 'if the power of judging be not separated from the legislative and executive powers,' he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other." [3]
• BELIEF (undated): James Madison believed that the powers of government must be separated to maintain a free government, and that they are kept separate by giving each department constitutional control over the others. He argued that without such control, the separation of powers cannot be maintained in practice. [4]
• BELIEF (undated): James Madison argues that the powers of government must be separated to prevent despotism and ensure a free government. He believes that unless the legislative, executive, and judiciary departments have constitutional control over each other, the separation of powers cannot be maintained in practice. This is based on his analysis of Virginia's constitution and Jefferson's views. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government." [5]
• BELIEF (undated): James Madison argues that the charge against the proposed Constitution of violating the principle of separating the legislative, executive, and judiciary departments is not warranted by the real meaning of that principle or by how it has been understood in America. He supports this by citing examples from state constitutions where these departments are not kept totally separate and distinct. "What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America." [6]
• BELIEF (1788-02-08): James Madison argued that the powers of government must be separated to prevent the tyranny of factious majorities and to ensure the security of rights. He believed that in an extended republic with diverse interests, the danger of oppressive majorities is reduced, and the government can maintain self-government more effectively. This is achieved by contriving the interior structure of the government so that its parts keep each other in check through mutual relations. [7]
• BELIEF (1789-06-17): James Madison believed that the powers of government must be separated to preserve liberty, and that they are kept separate by interpreting the Constitution to blend them as little as possible. He argued that the Constitution's structure, assigning legislative power to Congress and executive power to the President, implies that these powers should remain distinct in all cases unless blended for partial qualification. (key quote above) [8]
• BELIEF (1789-06-22): James Madison believed that the powers of government must be separated to preserve a free Constitution, with particular caution in the relationship between the Legislative and Executive powers regarding offices. He argued that the Legislative power creates offices and defines their powers, duration, and compensation, but the designation of individuals to fill offices is an Executive function. This separation is essential to ensure the independence of each branch of government. [9]
• BELIEF (undated): James Madison believed that the powers of government must be separated because power is liable to abuses, and by dividing it into separate departments, there is less room to abuse what is granted and less opportunity to usurp what is not granted. He argued that this separation keeps each department from encroaching on the others, as each is interested in maintaining its own. (key quote above) [10]

What cuts against it

• ACTION (1814-07-18): James Madison allowed commissions to be filled up in the office without prior approval, which could be seen as a departure from his stated belief in the separation of powers. "The Secretary of War will not in future permit commissions to be filled up in the office, until it be ascertained that the appointments are approved." [11]

• ACTION (1833-10-21): James Madison expressed a view that the designation of the United States as a nation in its united character is necessary for international relations, which may imply a concentration of power that could conflict with his belief in the separation of powers. "To question the nationality of the States in their united character has a strange appearance, when in that character only they are known to and acknowleged by other nations; in that only can make war, peace, and treaties; and in that only can entertain the diplomatic and all the other international relations which appertain to the national character." [12]

• ACTION (1830-08-28): James Madison acknowledged the responsibility of the President and the legislature to the people and the states, which may imply a concentration of power that could conflict with his belief in the separation of powers. "On the other hand, as a security of the rights & powers of the States in their individual capacities, agst. an undue preponderance of the powers granted to the Government over them in their united capacity, the Constitution has relied on, 1. The responsibility of the Senators and Representatives in the Legislature of the U. S. to the Legislatures & people of the States. 2. The responsibility of the President to the people of the U. States; & 3. The liability of the Ex. and Judiciary functionaries of the U. S. to impeachment by the Representatives of the people of the States, in one branch of the Legislature of the U. S. and trial by the Representatives of the States, in the other branch; the State functionaries, Legislative, Executive, & judiciary, being at the same time in their appointment & responsibility, altogether independent of the agency or authority of the U. States." [13]

• ACTION (1828-08-02): James Madison expressed concern over disunion and the potential for majority tyranny, which may imply a concentration of power that could conflict with his belief in the separation of powers. "All Govts. even the best, as I trust ours will prove itself to be, have their infirmities. Power wherever lodged, is liable more or less to abuse. In Govts. organized on Republican principles it is necessarily lodged in the majority; which sometimes from a deficient regard to justice, or an unconscious bias of interest, as well as from erroneous estimates of public good, may furnish just ground of complaint to the minority." [14]

2. HOW IT APPLIES (reasoning; inference is marked)

1. James Madison believed that the powers of government must be separated to prevent the concentration of power in one department, which could lead to tyranny. "It has become an axiom in the science of government, that a separation of the legislative, executive, and judicial departments is necessary to the preservation of public liberty." [15]

2. He argued that the separation of powers is essential to maintain a free government and prevent the abuse of power. (key quote above) [10]

3. Madison supported the idea that each department should have constitutional control over the others to maintain the separation of powers in practice. "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." [4]

4. He believed that the separation of powers is not only a theoretical concept but must be implemented through practical measures to ensure the independence of each branch of government. (key quote above) [8]

5. Madison also recognized that partial agency or control among departments is acceptable as long as it does not lead to the concentration of whole powers in the same hands. "From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying 'There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,' or, 'if the power of judging be not separated from the legislative and executive powers,' he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other." [3]

3. HIS TAKE

Record coverage: DIRECT

James Madison believed that the separation of powers is essential to prevent tyranny and ensure the preservation of public liberty. He argued that each department of government should have constitutional control over the others to maintain the separation in practice. This is based on his belief that power is liable to abuse and that dividing it into separate departments reduces the risk of abuse and usurpation.

Extrapolation: James Madison would likely support the separation of powers as a fundamental principle of government to prevent the concentration of power in one department, which could lead to tyranny. He would argue that each department should have checks and balances to maintain the independence of each branch and ensure the preservation of public liberty.

Competing readings: One reading is that Madison's belief in the separation of powers is based on the need to prevent tyranny and ensure the preservation of public liberty. Another reading is that his support for the separation of powers is based on the practical necessity of maintaining the independence of each branch of government. The record itself supports both readings, as Madison emphasized the importance of both preventing tyranny and maintaining the independence of each branch.

Confidence: High, as the record provides direct evidence of Madison's belief in the separation of powers and the practical measures needed to maintain it.