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Separation of Powers and the Madisonian Model: A Reply to the Critics*

Published online by Cambridge University Press:  01 August 2014

George W. Carey
George W. Carey*
Affiliation:
Georgetown University
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Abstract

This article critically examines the commonly held proposition that Madison advocated separation of powers as a means of thwarting majority rule, or, conversely, of protecting identifiable minority interests. Rather, Madison's chief purpose in advancing the doctrine of separation of powers–one which was shared by the majority of his contemporaries–was to prevent governmental tyranny whose characteristic feature was seen as arbitrary and capricious rule resulting in government of men, not of laws. Many modern critics' analyses of the Madisonian model (most notably, Burns, Dahl, and advocates of a responsible party system) are seriously deficient because they fail to take into account this dimension of the model. Madison's writings, principally in The Federalist, as well as his remarks at the Philadelphia convention, clearly indicate that one of his central concerns was simultaneously to provide for protection against governmental tyranny and to guarantee popular control of government. This article examines in some detail certain critical aspects of this endeavor.

Type
Research Article
Information
American Political Science Review , Volume 72 , Issue 1 , March 1978 , pp. 151 - 164
Copyright
Copyright © American Political Science Association 1978

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Footnotes

*

The author would like to thank the Earhart Foundation of Ann Arbor, Michigan whose support made possible the research upon which this article is based.

References

1 In addition to those works cited below a very partial listing of works which advance this thesis would be: Spitz, David, Democracy and the Challenge of Power (New York: Columbia University Press, 1958)Google Scholar; Dahl, Robert A. and Lindblom, Charles E., Politics, Economics, and Welfare (New York: Harper, 1953)Google Scholar; Hofstadter, Richard, The American Political Tradition (New York: Knopf, 1948)Google Scholar; Parrington, Vernon L., Main Currents in American Thought, 3 vols. (New York: Harcourt, Brace, 1927–1930)Google Scholar; and Commager, Henry Steele, Majority Rule and Minority Rights (New York: Oxford University Press, 1943)Google Scholar.

2 The varied and numerous proposals for a more disciplined and responsible party system are the most notable. For an examination of these proposals see Ranney, Austin, The Doctrine of Responsible Party Government (Urbana: University of Illinois Press, 1962)Google Scholar and Kirkpatrick, Evron M., “Toward a More Responsible Two-Party System: Political Science, Policy Science, or Pseudo-Science?” American Political Science Review, 65 (December 1971), pp. 965–90CrossRefGoogle Scholar.

3 Smith, James Allen, The Spirit of American Government (New York: Macmillan, 1907)Google Scholar.

4 The term “Madisonian model,” very much in vogue today, was first used by Burns, James MacGregor in The Deadlock of Democracy (Englewood Cliffs, N.J.: Prentice-Hall, 1963)Google Scholar. Part I of the book which deals with the obstacles to majority rule posed by the American political system is entitled, “The Madisonian Model.”

5 Dahl, Robert A., A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), p. 31Google Scholar.

6 Eidelberg, Paul, The Philosophy of the American Constitution (New York: Free Press, 1968), p. 153Google Scholar.

7 Burns, pp. 20–21.

8 Dahl, p. 22.

9 Burns, p. 21. To my knowledge this line of argument was first set forth by Schattschneider, E. E. in his Party Government (New York: Farrar and Rinehart, 1942)Google Scholar, “Madison's defense of federalism [his presentation in Federalist 10] annihilates his defense of the separation of powers. If the multiplicity of interests in a large republic makes tyrannical majorities impossible, the principal theoretical prop of the separation of powers has been demolished” (p. 9). As we shall see, however, Madison does not introduce separation of powers as a device to check factious majorities.

10 Most of what follows also critically bears upon salient aspects of the thesis advanced by Paul Eidelberg in The Philosophy of the American Constitution.

11 Cooke, Jacob E., ed., The Federalist (New York: Meridian, 1961), p. 324Google Scholar. All subsequent citations to The Federalist are from this edition.

12 Jefferson, for example, was most critical of the Virginia Constitution of 1776 precisely because the powers of government were concentrated. In his oft-quoted words, “All the power of government, legislative, executive, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.” [Peden, William, ed., Notes on the State of Virginia (New York: Norton, 1954), p. 120.Google Scholar] It is also interesting to note that both of Jefferson's drafts of a constitution for the state of Virginia (1776 and 1783) contain specific provisions for separation of powers.

John Adams, unlike Jefferson, can be viewed as a proponent of a mixed or balanced government wherein distinct classes would be represented, each with a veto over proposed legislation. See his A Defense of the Constitution of Government of the United States of America in The Works of John Adams, ed. Adams, Charles Francis (Boston: Little Brown, 1850–1856), Vols. 4 and 5Google Scholar. It should be pointed out that Adams' views never gained currency because the social structure of the United States, very dissimilar from that of England, was not amenable to such a balanced government. On this point see Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), pp. 148–51Google Scholar. Also see our discussion below.

13 These states were Georgia, Massachusetts, Virginia, Maryland, New Hampshire, and North Carolina. See Thorpe, Francis N., comp., The Federal and State Constitutions, 7 vols. (Washington, D.C.: Government Printing Office, 1909)Google Scholar.

14 Tansill, Charles C., ed., Documents Illustrative of the Formation of the Union of the American States (Washington, D.C.: Government Printing Office, 1927) at pp. 1028–29, 1045, and 1053Google Scholar.

15 On the difficulties surrounding implementation of the doctrine, particularly with respect to the legislative and judicial branches see Corwin, Edward S., “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention,” The American Historical Review, 30 (April 1925), pp. 511–36CrossRefGoogle Scholar.

16 For two excellent works dealing with the development of the doctrine of separation of powers see Vile, Constitutionalism and the Separation of Powers, and Gwyn, William B., The Meaning of the Separation of Powers, Tulane Studies in Political Science, Vol. 9 (New Orleans, La.: Tulane University Press, 1965)Google Scholar.

17 Documents Illustrative, p. 273. Because we lacked such social “orders,” Patrick Henry argued that any system of separation of powers would be ineffective. Elliot, Jonathan, ed., Debates on the Adoption of the Constitution, rpt., Vol. 3 (New York: Lenox Hill, 1974). 165Google Scholar.

18 Jowett, Benjamin, trans., Politics [Bk.4, Ch. 11] (New York: Modern Library, 1943), p. 189Google Scholar.

19 A Second Treatise of Civil Government (Ch. 18, Sect. 201) (Chicago: Gateway edition, 1955), p. 169Google Scholar.

20 Oscar, and Handlin, Mary, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge, Mass.: Harvard University Press, 1966), p. 327Google Scholar.

21 Oscar, and Handlin, Mary, eds., The Popular Sources of Political Authority, pp. 337–38Google Scholar.

22 The Federalist, pp. 326–27.

23 Popular Sources, p. 448.

24 The distinction between governmental tyranny and majority tyranny which seems to be blurred or ignored by many moderns was not lost upon John C. Calhoun. Throughout his Disquisition he treats of these two sources of tyranny as distinct [A Disquisition on Government (1853; rpt. New York: Political Science Classics, 1947)Google Scholar].

25 Dahl, cf. Ch. 1.

26 Ibid., Preface, pp. 6–7.

27 This particular confusion is reflected in the following passage from Dahl: “In retrospect, the logical and empirical deficiencies of Madison's own thought seem to have arisen in large part from his inability to reconcile two different goals. On the one hand, Madison substantially accepted the idea that all the adult citizens of a republic must be assigned equal rights, including the right to determine the general direction of government policy…. On the other hand, Madison wished to erect a political system that would guarantee the liberties of certain minorities whose advantages of status, power, and wealth would, he thought, probably not be tolerated indefinitely by a constitutionally untrammeled majority. Hence majorities had to be constitutionally inhibited” (p. 31). Clearly Madison in Federalist 10 did not see the need to constitutionally inhibit majorities. Nor is his concern in Federalists 47 to 51, which deal with separation of powers, the constitutional inhibition of majority factions. In these papers his evident concern is with guaranteeing the liberties of the people from arbitrary and capricious government (see text below).

28 Cf. Burns, Ch. 1. Burns acknowledges that he is building upon Dahl's analysis (p. 345).

29 The Federalist, p. 349.

30 The Federalist, p. 351.

31 The Federalist, pp. 352–53. Notice that Madison, right after addressing himself to the issue of separation of powers, turns immediately to the problem of majority factions and declares this problem “solved” by social checks and balances which have nothing to do with constitutional checks and balances. At no point does separation of powers play a role in curbing majority factions.

32 In this connection, it is highly doubtful that Madison was concerned with majority tyranny as that term is normally used. He was concerned about majority factions which could perform a tyrannous act. Madison does acknowledge at least the possibility of this occurring (“seldom” is his word), but this is quite different from a permanent condition of tyranny associated with a concentration of governmental powers. On these grounds majority tyranny (i.e., the act of a factious majority) is not on the same theoretical plane as governmental tyranny.

33 Dahl, p. 24.

34 The Federalist, pp. 326–27.

35 Be they economic, property, social, or civil rights. The incompatibility cannot be couched in terms which would suggest that Madison believed in political equality but thought that some people were more equal than others. See Dahl, Ch. 1, p. 31.

36 The Federalist, p. 56; emphasis added.

37 Ibid., p. 65.

38 Documents Illustrative, pp. 398–99.

39 The Federalist, p. 333.

40 The Federalist, p. 333.

41 Ibid., p. 334.

42 Ibid.

43 In this Madison is addressing himself to a scheme for preserving the independence of the branches set forth by Jefferson in his Notes on Virginia.

44 The Federalist, pp. 341–42.

45 Ibid., p. 334.

46 Ibid., pp. 345–46.

47 To this point he writes in Federalist 63, “The people can never wilfully betray their own interests: But they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act” p. 426–27.

48 In this regard, Madison writes in Federalist 48 that it is against a legislature “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 … that the people ought to indulge all their jealousy and exhaust all their precautions,” p. 334.

49 See Federalist 78 where this theory is articulated with respect to judicial review.

50 Federalist 78, p. 349.

51 Ibid.

52 Federalist 78, p. 348.

53 Burns (p. 22) mistakenly reads this as “auxiliary precautions” against majority tyranny. The errot is understandable in light of his basic confusion concerning the purpose of separation of powers.

54 This we submit as a composite argument drawn not only from the critical assessments of the Madisonian model in terms of its democratic character but from legislative behavioral studies as well. In any event, bicameralism certainly opens up the possibility of deadlock and its very existence suggests that there can be two popular majorities on any given issue, a notion logically inconsistent with majoritarian theory.

55 This, in one form or another, is what most of the critics of the Madisonian model contend bicameralism was intended to do. In this respect, they see the Framers (and Madison as well) attempting to create a “mixed government” along the lines advocated by John Adams. This interpretation was, no doubt, bolstered by Beard's, Charles A.An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1935)Google Scholar which related structural forms to economic interests. See also Sharp, Malcolm P., “The Classical Doctrine of the Separation of Powers,” University of Chicago Law Review, 2 (April 1935), pp. 385–436CrossRefGoogle Scholar.

56 The Federalist, p. 350.

57 Documents Illustrative, p. 279.

58 The Federalist, p. 418.

59 The Federalist, pp. 424–25.

60 Ibid., p. 425.

61 Documents Illustrative, p. 281.

62 The Federalist, p. 431.

63 Documents Illustrative, p. 345.

64 The Federalist, p. 416.

65 Documents Illustrative, p. 310.

66 The Federalist, p. 417.

67 Ibid. Madison's “wish” seems to have been realized. Writes Dahl, Robert A., “The conclusion seems inevitable that the benefits and disadvantages flowing from equal state representation in the Senate are allocated in an entirely arbitrary fashion and cannot be shown to follow from any general principle.” Pluralistic Democracy in the United States: Conflict and Consent (Chicago: Rand McNally, 1967), p. 125Google Scholar.

68 For a pioneering effort in this direction see Diamond, Martin, “Conservatives, Liberals, and the Constitution,” in Left, Right and Center, ed. Goldwin, Robert A. (Chicago: Rand McNally, 1969), pp. 60–86Google Scholar.

69 I have borrowed this term from Professor Charles S. Hyneman.

70 It is true that the model is also attacked on grounds that its structural forms prevent the realization of economic and social “democracy.” But this is usually viewed as the very object of its presumed deviation from democratic principles.

71 Dahl, , Preface, p. 32Google Scholar.

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