Mindful of their experience under British rule, following the Revolutionary War most states set up their constitutions with a sharp separation of the legislative and executive branches. In many of these states, however, the legislatures accumulated powers beyond those granted in their constitutions, including executive and judicial powers. This led to disastrous consequences in many states during the 1780s. Legislatures encroached on governors, stripping them of independence, and this led to hastily enacted laws inflating currency to bail debtors out of their obligations. Shays’ Rebellion in Massachusetts was particularly alarming, as the governor was so weak, he had to borrow money from wealthy Bostonians to appease a mob of 3,000 farmers rebelling against the state government.

In this paper, Publius Madison argues that a nominal, sharp division of legislative, executive, and judicial power on paper does not adequately guard against the propensity of the legislative branch to encroach on the powers of the other branches, especially in a republican form of government. These parchment barriers are insufficient to protect the other branches from the legislature, which has several advantages over the other branches. Thus, the division of powers on paper must be supplemented by checks and balances, and personal motivations, as Madison subsequently explains in Federalist 51.

Source: George W. Carey and James McClellan, eds., The Federalist: The Gideon Edition, (Indianapolis: Liberty Fund, 2001)

To the people of the state of New York:

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. . . . It is agreed on all sides, that the powers properly belonging to one of the departments [executive, judicial or legislative] ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. 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. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American [state] constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of a hereditary magistrate, supported and fortified by a hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; 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; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not infrequently 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. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some [state] constitutions full discretion, and in all 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. . . .

Study Questions

  1. Why does James Madison call the legislative power the “impetuous vortex?” Why is this a problem? Why is legislative power the most dangerous power in a republican form of government? How does a republic differ from a monarchy or an aristocracy in this respect? What specific features of legislative power make it so dangerous?
  2. Is Madison correct about the dominance of the legislative branch in a republic, or is the executive more likely to be dominant? What does Congress’s conduct after the Civil War (Articles of Impeachment Against Andrew Johnson) reveal about this question? On the other hand, does the executive have the upper hand in certain matters, such as war and foreign affairs (Debate on the Constitutionality of the Mexican War, Speech on the Constitutionality of Korean War, and Debate to Override President Richard Nixon’s Veto of the War Powers Resolution)?