Federalist Papers Summary 48
The Federalist Essays Summary No 48: James Madison February 1, 1788
Having shown in the last paper that the separation of powers need not be total as critics claim, he now argues it should not be total but rather constitutional restraints on each branch should be available to the other branches. This paper makes the argument for the restraints but does not define them. Everyone agrees that the powers belonging to one department ought not to be directly and completely controlled by either of the other departments. Equally it is evident that neither of them ought to be able to overrule the others and that power needs to be effectively restrained. “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.”
Is it sufficient to merely state in a document the precise boundaries of power for each branch and “trust to these parchment barriers against the encroaching spirit of power?” Not if experience is to be trusted for within the governments of the States everywhere the legislative departments are extending their power over the other branches. Their constitutions have been written seemingly more concerned with the tyranny of an hereditary magistrate supported by an hereditary legislative branch than with the danger from an all powerful legislative branch. When a legislature passes laws with a “question of real-nicety” who will question the constitutionality but when executives or judiciaries exceed their more narrow powers they are easily seen. Also legislatures alone can tax the people and in many States provide the salary structures for those in the other branches.
He finishes the paper with a discussion of the Virginia and Pennsylvania State Governments to show how constitutional powers have been exceeded thus concluding merely enumerating the powers of each branch on parchment is insufficient in controlling the powers of each. Two of the constitutional violations in Pennsylvania are of interest. One was because the legislature did not publish ahead of time for public consideration a great number of bills of a public nature as required by law. They probably thought they needed to pass the bill so the people could see what was in it. The second were violations by the executive branch which had grown as large as the legislative branch thus the individual executive could be separated from the actions of the entire branch and therefore unrestrained relative to that of individual responsibility. We see this in our current administration where the response to odious regulations by the EPA , SEC, NLRB, and by other departments is not often directed at the chief executive who makes possible these actions.
Federalist Papers Summary 48 Written by Donald Mellon