Separation of powers did not prevent slavery and the American Civil War. It cannot be the whole solution. It is not sufficient for successful foundings. It is, however, necessary: without a well designed constitutional structure of separated and counter-balanced powers, "All would be lost," as Montesquieu says.70

Preliminary to any discussion of separation of powers, we must note Madison's earlier remark in Federalist 37:

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient clarity, its three great provinces--the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.71

The exact determination in practice of the three powers and the boundaries between them remains a problem central to the interpretation of the American, and any real, constitution. In the American tradition of judicial review, the Supreme Court is the ultimate interpreter of the constitution and arbiter of disputes in practice. This crucial function of the Supreme Court begins to emerge in Federalist 51, and is further developed in Federalist 78, which describes the special character of the Supreme Court.

The five essays on separation of powers do not, therefore, solve once and for all the abiding problem of determining in practice the boundaries of the three powers. Rather, they explain the structure of separation of powers within which this problem is to be managed. That structure consists of legislative and executive checks and balances, and judicial independence. The value of Federalist 47-51 consists in the argument for the structure of separation of powers.

The essay begins with a general objection directed against the proposed system of government, namely, that the constitution does not separate the executive, legislative, and judiciary powers adequately. This objection is potentially deadly, for Madison replies that, if it were true, then indeed the American constitution would be a failure.72 His account then consists of, first, an affirmation of the validity of separation of powers and, second, an argument that the American constitution does indeed meet the test of separation of powers properly understood. The explicit essential point will be that to ensure an adequate separation, the powers must be partially combined. The implicit essential point--accessible to careful reading--will be that in a republic, unlike a monarchy, separation of powers has a double function: the anti-tyrannic (as in a monarchy), but also (as applied in a r epublic) an anti-republican function, namely, to separate the operations of government from the people.73 This point remains implicit precisely because it is disturbing to the republican temperament, to the popular opinion to which The Federalist must appeal. Yet the argument for the anti-republican function of separation of powers in a republic must be made, because this function is extremely important. Let us see how Madison's account emerges from the text of Federalist 47.

"[T]he preservation of liberty requires that the three great departments of power should be separate and distinct."74 Madison here presents an incisive formulation of the anti-tyrannic function of 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, may justly be pronounced the very definition of tyranny."75 This formulation is radical. It says that, without separation of powers, even a system of majority rule and free and fair elections is tyrannic. And it is modern (post-Machiavellian) in that it defines tyranny in terms of institutional arrangements that facilitate concentration of power, rather than in terms of rule by a person with an extremely corrupt and degrad ed psyche.76 In this respect, it is similar to, but goes beyond the French Declaration of the Rights of Man and Citizen of 1789: "Every society in which the guarantee of rights is not assured or the separation of powers not determined has no constitution at all."77 The French formulation refers to a nonconstitutional order, rather than outright tyranny, resulting from the absence of separation of powers. And the French formulation contains an important ambiguity: it is not clear whether separation of powers will involve checks and balances to secure the limitation of power in practice, and thus the protection of liberty, or merely a functional separation for the sake of more efficient government.78

Most significantly, Madison's formulation cuts across the traditional, Aristotelian classification of the six forms of government according to good or bad rule by one, few, or many:79

	Good:	Bad:
One:	Monarchy	Tyranny
Few:	Aristocracy	Oligarchy
Many:	Democracy	Ochlocracy

In this Aristotelian scheme, the moral character or virtue of those who rule is crucial, for it determines whether those in power promote the common good or undermine it by promoting only their own selfish good. Madison replaces the good-bad distinction with the presence or absence of separation of powers. It seems as if the role of virtue will be entirely replaced by clever institutions. This is the Machiavellian aspect of modern political theory; we must ask if this can really suffice, and if it is really the whole approach of The Federalist. It will become clear that it cannot be, for the judicial sector will require special virtues.

Madison's scheme looks like this:

	with SP:	without SP:
One:	Monarchy	Tyranny
Few:	Aristocracy	Tyranny
Many:	Democracy	Tyranny

Where in this scheme do we place the American system of government proposed by The Federalist? The United States will be a republic (thus non-monarchic) with a constitution of separated powers (thus non-tyrannic). Therefore, we know that it must lie in the left-hand column, either under "Aristocracy" or "Democracy." But will the United States be a democratic republic or an aristocratic republic? By aristocratic republic, let us understand a form of government with a scheme of representation, but also with a fundamental distinction of social classes between the ordinary majority, and the aristocrats: an elite minority defined by hereditary possession of land, wealth, and a superior education aimed at political rule. In an aristocratic republic, powers can be separated and reciprocally limited through representation of the two distinct social classes. In such regimes, the sovereignty does not derive wholly from the people. Although the people may, i n certain cases, be able to remove by vote particular representatives of the aristocracy, the electoral system would be arranged so that those removed will be replaced by other members of the aristocratic class, who thus represent the same distinct interest. Therefore, the principle danger to which aristocratic republics would be exposed consists in the unchecked accumulation of power in the representatives of the aristocratic class. This leads to the corruption of the aristocracy into an oligarchy--rule by a self-centered minority with great wealth, and thus with the power to maintain itself to the detriment of the majority.

In the American republic, however, there is no aristocratic class because the human material is lacking. The United States must be a democratic republic. In Federalist 39, Madison in fact defines the term "republic" in such a way that it can only be democratic not aristocratic:

we may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people. . . . It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people. . . .80

Specifically, in the American republic, both the federal government and the state governments will be "substantially dependent on the great body of the citizens of the United States."81 In a democratic republic, sovereignty derives wholly from the people; therefore, those in power have no power in their own right. Conversely, on this Madisonian account, if any part of the system of government, any sector of power, any service of the state, cannot be changed or removed--directly or indirectly over a shorter or a longer period of time--that system is neither democratic nor a republic. The strength of a democratic republic is, therefore, its resistence (when properly designed) to the tyranny of one or a few.

The democratic character of the American republic could have been inferred from Federalist 10 in which republic is simply taken to be a species of democracy, namely, representative democracy. Here, in Federalist 47, we come to the same conclusion but from a broadened perspective, one that enables us to see how the factional problem of Federalist 10 affects the American implementation of separarion of powers. For in a democratic republic (majority rule mediated by a scheme of representation), the usurpation of power against which separation of powers must be designed comes in some way from the majority. This conclusion derives from the following reasoning: In a monarchy, separation of powers must be directed against royal usurpation; in an aristocratic republic, it must be designed against encroachments by the representatives of the elite minority; in a democratic republic, it must be designed against encroachments by the representatives of the majority. To facilitate representative democracy that is both free and stable against both degrading dictatorship and factional conflict, separation of powers must in some way separate government from the people. This is the anti-republican aspect of separation of powers in The Federalist. It brings us to the following paradoxical position: in a democratic republic with separation of powers, government is made dependent on the people to guard society against the tyranny of one or a few, and independent of the people to guard society against the tyranny of the many. This is clearly a most delicate project in the art of government. It embodies the American founders' answer to the democratic problem of wisdom and consent. Failure to arrange this balance of dependence and independence of the power in relation to the people renders democracy vulnerable to majorities made irrational by the manipulation of demagogues, who then either sieze dictatorial power themselves, or serve the inter ests (by becoming the populist crutches) of an oligarchy, that is, "a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers."82

We must ask, what is the very special sense in which separation of powers separates government from the people? We shall find in Federalist 51 that the answer consists in this, that the structure and operation of separation of powers is separated from the people by means of checks and balances between legislative and executive branches, and by means of the independence of the judiciary branch, specifically the Supreme Court.

Let us complete our analysis of Federalist 47. Madison's explicit argument (against those who object that the constitution does not separate the powers of government) is that the proposed constitution does indeed meet the requirements of separation of powers. For this, Madison turns to Montesquieu and the British Constitution.

"The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry."83 It is striking that, for his defense of separation of powers in the new American republic, Madison uses the English monarchy as a model. There follows a detailed examination of the British Constitution as well as the republican constitutions of eleven of the thirteen American states. Madison shows that "there is not a single instance in which the several departments of power have been kept absolutely separate and distinct."84 Thus it is not reasonable to maintain--as do Madison's objectors--that the three powers must be absolutely or totally separate. Rather, the powers must be partially combined precisely to make possible the checks and balances (such as the executive veto, and legislative review of executive appointments) without which there are no effective barriers in practice to usurpations by one or another sector.85 Therefore, properly understood, separation of powers requires that "the whole power of one department [must not be] exercised by the same hands which possess the whole power of another department."86 All the examples cited fulfill this requirement, as does the federal constitution here proposed. But what is the difference between the examples; is there any significance to the striking fact that Madison picked a monarchy as his first example of a free constitution? The American state constitutions all fail, in spite of their salutary efforts, to secure the separation of powers in practice: "in no instance has a competent provision been made for maintaining in practice the separation delineated on paper."87 This is a crucial defect of the American state constitutions. Is it also a defect of that British Constitution so highly regarded by Montesquieu? On the contrary, Madison makes no such criticism of the British Constitution. The great criticism of monarchy overarching The Federalist is, of course, that, after the abuses to which the American colonies were subjected by King George (see the Declaration of Independence), America will not have a king, and so the new constitution will be republican. Here, however, in Federalist 47, Madison places the British Constitution in a positive light: the American republican states failed to secure in practice the separation of powers written into their constitutions, thereby jeopardizing the liberty of the citizens; the British Constitution did not fail in this way, so that the liberty of the citizens of England was protected. The reason for this difference is that the republican American states did not realize that, in a democratic republic, the principal threat to liberty comes not from the executive power, but--as we inferred above--from the legislature, from the representatives of the majority. This is the subject of Federalist 48.

"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. . . . the . . . most difficult task is to provide some practical security for each [power] against the invasion of the others. What this security ought to be is the great problem to be solved."88 Separation of powers must be realized in practice, otherwise it is worthless. Madison makes two basic points. First, a merely written description of the boundaries of power--"parchment barriers"--will hardly suffice.89 This is obvious to all. Less obvious is his second point: in a democratic republic, unlike a monarchy or a pure democracy, the threat of usurpation, of violation of separation of powers, comes principally from the legislative branch. "The legislati ve department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex."90 The American states ignored the legislative vortex, and concentrated instead on the threat of executive usurpation. They failed to understand the implications of their new form of government, the democratic republic. Madison's reasoning here merits careful attention. He considers three cases: first, monarchy; second, pure or direct democracy; third, representative democracy, that is, a democratic republic.

The danger presented by a hereditary monarch is clear. The throne possesses the executive power, and the people cannot change or remove the king by any system of elections, direct or indirect. Therefore, in structuring separation of powers in a constitutional monarchy, the throne must be "justly regarded as the source of the danger, and watched with all the jealousy which a zeal for liberty ought to inspire."91

The danger in a pure or direct democracy is two-fold: factional conflict as discussed in Federalist 10, but also, as described here in Federalist 48, executive usurpation. This violation of separation of powers comes from the incapacity of a large number of people to sustain a process of deliberation and effective action. Because of this, the executive officers may exploit confusion and collective indecision for their own interests. They may appeal through propaganda and disinformation to the fears and uncertainty of the people--especially in the face of a perceived emergency--and execute laws of their own making. Thus also in a pure democracy, separation of powers should be designed with a view to executive usurpations.

In a democratic republic, however, there occurs in the legislative assembly (congress or parliament) a specific conjunction between its confidence in its own strength, its numerical size, and its capacity for rational deliberation over ends and means. Madison's analysis of reason, passion, the power and the people, under conditions of majority rule and republican representation was evident in the account of factions in Federalist 10. This analysis reappears here, applied not to society as a whole, but to the legislative body in order to determine implications for the structure of separation of powers. Specifically, the legislative assembly

is inspired by a supposd influence over the people with an intrepid confidence in its own strength; [it] 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.92

Unless checked by special arrangements, the legislative assembly runs the risk of acting like a passion-based faction (in the sense of Federalist 10) with respect to ends, and like a single individual or small group, thus efficiently, with respect to means. The legislature may do this either as the representatives of an overbearing majority, or of an oligarchic minority masquerading behind democratic language and popular but meaningless elections.93

The special arrangements for moderating the legislative sector that are most familiar today concern bicameralism: division of congress or parliament into two chambers, with different terms in office (for example, two years and six years), and different modes of election (for example, by direct popular election and, indirectly, by regional delegates). These arrangements derive from the reasoning of Federalist 47-51. The principal purpose of bicameralism is, as we shall see in Federalist 51, to create different and, thus to an extent, counterbalancing interests in the two houses. Typically, members of the lower house are motivated by immediate and local concerns due to the shortness of their term and their direct dependence on the people in their district. In contrast, members of the upper house are freed to act with a view to longer term national issues. The extremely important question of proportional representation versus single-member districts is involved h ere, for "it is essential to liberty that the government in general should have a common interest with the people."94

Under a system of single-member districts (a system sometimes called uninominal), the performance of the elected representative is determined mainly by two factors: 1) the platform of his or her party; 2) issues and interests specific to his or her geographic district. In contrast, under proportional representation, the party lists for which citizens vote are the same nationwide, so that there is no geographic factor, no local attachment, in the performance of the elected representative. Under proportional representation, then, "to represent" means strictly to support the party platform, which often means simply following the party leader. In contrast, a system of single-member districts embodies a broader concept of representation, and affords multiple points of access for individuals and groups that might otherwise be excluded from representation (because excluded from the governing majority).95< /A> Furthermore, a privileged group of party leaders, even if aristocratic initially, is likely to become corrupt and oligarchic through their own entrenchment and the resulting accumulation of power in their own hands, as the cases of Italy and Japan make clear.

The distinct interests of the two houses created through bicameralism--the lower house being more popular and the upper more stable and deliberative--can help to moderate the factional force of even a disciplined majority in parliament. In this way, separation of powers is more effective, and the common good better protected against both oligarchic and majoritarian usurpation. Let us return to Madison's account.

As evidence in support of his reasoning, Madison quotes a remarkable passage from Thomas Jefferson's Notes on the State of Virginia, in which is described what Jefferson calls "an elective despotism [which] was not the government we fought for."96 The problem is precisely that in the Virginia state constitution, "no barrier was provided between these several powers. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it."97 As a result, says Jefferson, "All the powers of government, legislative, executive, and judiciary, result to the legislative body."98 The importance of salaries or subsistence cannot be overstated. In Federalist 79, Hamilton states that, "In the general course of human nature, a power over a man's subsistence amounts to a power over his will."99 To a great extent, this is how the Communist Party--an oligarchic minority--kept millions under its control (after having first brought them there by the brutalities of Stalinization). This is why privatization and, in general, the system of law supporting private property and enterprise, is a life and death issue for the postcommunist transition.

The implications of Jefferson's remarks are severe: free and fair multi-party elections are necessary but far from sufficient for free government. Bad government is compatible with pluralism and popular elections. The cause of this malady is a constitutional order deficient in the separation and mutual limitation of powers. Madison cites as a second example of legislative abuse the findings of the Pennsylvania Council of Censors100, about which he will have more to say in Federalist 50.

The problem of securing the separation of powers in practice remains unsolved. In Federalist 49, Madison considers and rejects Jefferson's own proposed solution, namely, to recur to the decision of the people to correct violations of the separation of powers. In Federalist 49 and 50 we find Madison's argument that separation of powers should work in a way that is independent of the people. Separation of powers will, therefore, separate the actual operations of governing from the people.101

Jefferson proposes "whenever any two of the three branches of government shall concur in opinion . . . that a convention is necessary for . . . correcting breaches of [the Constitution], a convention shall be called for the purpose."102 Madison makes clear that Jefferson's proposal conforms to the principle of democratic republicanism, that is, every part of the system of government, every sector of power, depends (directly or indirectly) on the people: "the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived."103 And Madison indeed agrees that, "a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occ asions."104 But, as a means to interpreting or correcting violations of the separation of powers, the "road to the decision of the people" must be closed. Neither in principle, nor in practice, would recurrence to the people be good. Why?

Madison makes three basic points: 1) the constitution must be the object of a very special kind of public opinion, namely, deep respect or veneration; 2) appeals to the people to judge violations of separation of powers will generate a factious spirit adverse to veneration; 3) a popular decision concerning violations of separation of powers would, therefore, not be made on the merits of the case.105

In making his argument, Madison returns to a central thesis of Federalist 10, the weakness of reason and the strength of the self-regarding passions. In all free political debates, men come to a diversity of opinions on one and the same subject. If the subject engages powerful passions or interests, the debate becomes angry, and one's reasoning and judgment distorted in favor of those who share one's own particular passion or interest, i.e. one's own faction. The fundamental quality of the constitution must not become the object of this kind of public debate; it must not become the object of passionate factions, and of a public suspicion that the whole system is defective, lest the wisest and freest governments [lose] the requisite stability."106 The great value of stability in free government is well stated in Federalist 37:

Stability in government is essential to national character and the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people.107

Instability means either anarchy or rule of the arbitrary: subjection to "the capricious will of another."108 Continued over generations, instability produces in the people either abject lawlessness, or a mentality of passivity and a deep-seated lack of confidence--in oneself, in others, and thus in the future. In either case, citizens have no belief in their own capacity for self-government. Furthermore, and of great importance today, long-term financial investments are impossible, since the long-term contracts on which they are based lack credibility due to pervasive distrust.109 For these reasons, "stability in government is essential to national character."

But according to Madison, there is a remedy for the spirit of faction and the effects of instability:

the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinon. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect.110

An opinion held by many persons, an opinion based on examples that are many, and old--examples of the constitution working successfully--would engender the unanimous respect or veneration of the constitution essential for stability in government. This special and rare kind of public opinion cannot take root if the whole people are called upon to decide the most difficult problems of constitutional interpretation: alleged violations of separation of powers.

It might be objected that, at the time of the revolution, the independent states of America revised their forms of government and composed their own constitutions through public deliberation and action. Why could this procedure not be continued by the United States as a whole for the correction of violations of separation of powers in the new federal constitution? Madison replies that moments of national exaltation and unity, such as that afforded by the American Revolution, or the East European revolutions of 1989, are extraordinary and do not provide a lasting basis for government:

all the existing [state] constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed do not present any equivalent security against the danger which is apprehended.111

Revolutionary ferver is unforgettable but, unfortunately, useless for the establishment of good government. A diversity of opposed opinions passionately held, concerning issues and leaders, will arise in the ordinary operations of republican government. This combination of reason and passion, resulting in judgment distorted by partiality, is acceptable within the framework of the constitution, within the structure of separation of powers: It is acceptable in the election of presidents and representatives, and to a degree, in legislative debates, where often "[t]he passions, . . . not the reason, of the public would sit in judgment."112 But judgment distorted by partiality is not acceptable concerning the most serious problems of the constitution, that is, concerning the structure and operation of separation of powers itself. For "it is the reason alone, of the public, th at ought to control and regulate the government. The passions ought to be controlled and regulated by the government."113

Madison considers in Federalist 50 one further possibility for recurring to the people for correction of violations of the separation of powers: instead of making occasional appeals, make regular and periodical appeals.

Regular appeals to the people to correct violations of the separation of powers is subject to the same objections raised by Madison in Federalist 49. Of greatest interest in Federalist 50 is Madison's use of the "Council of Censors which met in Pennsylvania in 1783 and 1784, [in order] to inquire, 'whether the [Pennsylvania] Constitution had been violated, and whether the legislative and executive departments had encroached on each other'."114 The uniqueness of this case (it does not exemplify periodic appeals to the people), would seem to disqualify it, but Madison insists that it is, nevertheless, a very good example of the truth of his reasoning. The most essential point is this: Owing to their attachments to the two parties in the dispute (the executive and legislative bodies under investigation), the judgment of the Council of Censors was distorted. In the key paragraph o f Federalist 50, Madison focuses on "the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves."115 The best evidence of this is that,

In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer . . . that, unfortunately, passion not reason, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.116

Here each faction has its own common opinion opposed to that of the other faction, but this is precisely the wrong kind of common opinion.

As a result of the defective character of their deliberations, "[i]t is at least problematical whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places."117 Finally, whether right or wrong, the Council of Censors had no way to enforce decisions on the legislative or executive bodies.118

The Pennsylvania Council of Censors exemplifies the "factious spirit [that] has tainted our public administration," with which Federalist 10 begins. This body of political men is for that reason unqualified to judge violations of the separation of powers. It is now clear that whoever will be empowered to judge the separation of powers must have very special qualities and a very special place in the system of government--remote from the people and their elected representatives. The qualities of character necessary for the judiciary branch are described in Federalist 78, mentioned below. The special, non-republican place of the judiciary in the American republican system begins to emerge in Federalist 51.

Madison's basic principle is this: by filtering and thus refining the passions and opinions of the American people and their representatives, separation of powers will make those who hold power more reasonable. The filters are: 1) checks and balances between legislative and executive, and within the legislative branch; 2) the independent judiciary.

Federalist 51 represents the culmination of the treatment of separation of powers begun in Federalist 47. It is a central point in the argument of The Federalist, for it recapitulates crucial theses from Federalist 10, and points ahead to the account (in Federalist 52-83) of each of the branches of government, especially the judiciary ( Federalist 78-83).

Madison begins with the question that has defined the inquiry since Federalist 48: "To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution?"119 We have learned in Federalist 48-50 that neither "parchment barriers" nor popular conventions and referenda are the solutions to this problem. The solution consists rather in "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."120 We are pressed to ask, How is this to be done?, for we have come to see that a true separation of powers must be an extraordinary achievement. It seems, however, that Madison will give us only partial satisfaction: "Without presuming to undertake a full development of this important idea I will hazard a few general observations which may perhaps place it in a clearer light."121 Why is there no "full development" of this crucially important idea? Is it because such a development must--as we have inferred--reveal a certain anti-republican aspect of separation of powers, namely, that it separates the power, especially the judiciary, from the people? (Concerning the judiciary, there is only a single, but very important, sentence in Federalist 51, quoted below.) Is it because the security of separation of powers in practice must depend on the willingness of men and women to take extreme action--such as risking one's life in defense of the Constitution--whose outcomes cannot be foreseen, and are thus not subject to theoretical analysis? Let us review what Madison has to say about "the interior structure of the government." In spite of his reticence, he presents some of the most important characteristics of modern constitutional democracy.

Different modes of appointment for the different branches: "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 other."122 This measure acquires its efficacy when combined with different terms of office for the executive, and for the upper and lower houses of the legislative body, described below.

Salaries and rewards of one branch not subject to determination by other branches: otherwise "their independence in every other [respect] would be merely nominal."123 The importance of salaries was emphasized above in the comments on Federalist 48.

Checks and balances for legislative and executive branches: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."124 Here Madison presents the special arrangements for moderating the legislative assembly and strengthening the executive. They are bicameralism, and the (qualified) executive veto over legislation:

In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into two 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. . . . [A veto] on the legislature appears . . . to be the natural defense with which the executive magistrate should be armed.125

The remainder of Madison's argument then qualifies the presidential veto by a complicated arrangement which became (in the American system) the right of the Congress to override the President's veto by two-thirds majorities in both Houses. As the ultimate check on executive abuse, the Congress has the power to impeach the President.

These are "constitutional means" designed to strengthen the "personal interest," and appeal to the ambition, of members of the executive and legislative branches of government. It is as if The Federalist were saying to political men and women, "it is in your interest to direct your ambition to the correct performance of your constitutional function, and one object of your ambition is now to resist encroachments by the other power." The mutual awareness of this fact is a strong inducement for both executive and legislative to reach compromise through deliberation and consultation. Madison's institutional devices make for a complex system of government. But the reason is simple: a system of government without parts will become despotic or unstable.

The special character of the judiciary branch: Federalist 51 contains a single, extremely important sentence on the judiciary:

In the constitution of the judiciary department . . . it might be inexpedient to insist rigorously on the principle [of separate electoral channels for each branch]: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; second, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.126

Here, the principle of selection is not the faithful representation of the people, but rather the moral and intellectual qualities of judges. Any dependence on the people (through their representatives in the other two branches) must be removed by permanent tenure. This is the basis of judiciary independence, which is anti-republican in that, once in office and assuming they commit no crimes, judges cannot be removed by the people. But this non-republican measure is for the sake of a good republic, one free of factional conflict and instability. The account of the judiciary in The Federalist makes clear that institutional arrangements for the limitation of power, no matter how necessary for free government, cannot ultimately provide the wisdom and courage needed for good government.

The Supreme Court then is very special indeed. It is not subject to checks and balances, and it has the crucial function of interpreting the Constitution: "A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."127 This means that the Supreme Court is the final arbiter of infringements of separation of powers: whenever Madison's "inventions of prudence" fail to resolve a conflict between legislative and executive branches, the issue will go to the Supreme Court. But this power has no constitutional means to defend itself, or to enforce its decisions against the other two branches:

The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.128

This raises what is perhaps the most radical question for the study of American government, and even of human institutions generally, namely, how would the members of the Supreme Court enforce their decision and defend themselves against an angry executive--the power commanding men with guns--who was willing to arrest them? They clearly cannot defend themselves, and so the question becomes, what compels an angry executive to restrain himself and respect the Constitution as interpreted by the Supreme Court? It seems that it can only be fear of the consequences of offending the public veneration of the Constitution, thus fear of offending that special kind of opinion that Madison described in Federalist 49, and thereby provoking a national crisis of incalculable proportion.

Hamilton makes the argument for permanent judiciary tenure in Federalist 78, wherein there emerges a picture of the judicial character. Firmness or fortitude and an independent spirit, but combined with moderation and impartiality; knowledge, integrity, and outstanding legal competence--these are the special qualities necessary for the judiciary branch. They are seldom found together in the individuals of the executive and legislative sectors. Permanence of tenure does not create these qualities (in the way that bicameralism and checks and balances create equilibrating interests and ambitions) but it is, in Hamilton's view, necessary to protect such qualities from the pressures of the more interested and ambitious legislative and executive powers:

as nothing can contribute so much to [the] firmness and independence [of the judiciary] as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice. . . . This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves. . . .129

The stakes are very high: "liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."130 Thus, for example, the corruption of judges through bribery or privileges has grave implications. It seems that failure here, in the judiciary branch, means failure of the entire regime of free and stable government, sooner or later. Is this not an echo of Plato? Artful institutuions notwithstanding, without wisdom or phronesis, good government cannot last.

The concluding paragraph of Federalist 51 is unusually long. It contains a remarkable warning that in today's climate of separatist opinion throughout the former Soviet Bloc is especially sobering. Small independent republics will fail even if they implement separation of powers in their own governments. The problem is that, in a small territory, there will not be a sufficient diversity of economic interests and classes of citizens.

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.131

Madison gives as a potential example Rhode Island, the smallest of the American States, and does not hesitate to offend the belief of citizens of Rhode Island in their capacity to govern themselves as an autonomous republic; they could not do it:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.132

The basic reasoning is taken directly from Federalist 10, and consists of two essential theses: 1) "the latent causes of faction are . . . sown in the nature of man"; 2) the smaller the country, the more easily a majority faction in a democracy can "concert and execute their plans of oppression." The resulting conflict will lead to a general desire for "some power altogether independent of the people," thus a constitutional monarchy, a dictator, or foreign military intervention. "This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties."133 According to Madison, republics need to be large. By implication, constitutional monarchy may be the best possible form of government for small co untries. Small republics will tend to fall into factional conflict and, thereby, lose both individual liberty and national sovereignty.