Federalist Nos. 47 – 48

I had never really considered the interplay between the concept of separation of powers and the concept of checks and balances between branches of government. Here Madison explores the limits on the separation of powers (Federalist No. 47) and the necessity of robust checks and balances (Federalist No. 48). Having read these papers I have a greater respect for the delicate balance that the founders were attempting to strike.

Madison also provides some input into the perspective of the people of his time as he discusses their propensity to fear the power of the Executive branch over the power of the Legislative branch. He argues that the unchecked legislature was as dangerous (and more likely in the government of the United States) as an absolute monarch:

In a government where numerous and extensive prerogatives are placed in the hands of an 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.

Given our current experience it might be very easy for us to think that he was wrong and that the people were right to have more fear of their executive branch than of their legislative branch. We would do well to remember that the recent and pervasive abuses of the executive branch, and the expansion of power within that branch were facilitated by a Congress that was complicit at worst and neglectful of their own duties at best. While it is certainly time to curtail the authority of the executive branch we should be mindful that these abuses were less a failing of the Constitution than they were a failure on the part of our other elected representatives. In fact, Madison discuses a similar situation in the government of Pennsylvania:

It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand

The executive branch of Pennsylvania at that time was composed of a thirteen-member Supreme Executive Council.

It’s time for our Congress to stand up and do their job of checking the executive branch. Once they do that they should follow it up by mandating that the president reduce the footprint of the federal government by shrinking or eliminating government agencies or departments that are not essential to providing the services that are appropriate to the federal government.