Federalist #47

The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts  (Madison)

In the Federalist paper #47, Madison seeks to refute the idea that there must be total separation between the executive, legislative, and judicial branches. According to him, the source of the critics’ idea of separation of powers seems to have originated from Montesquieu, a British political critic who proclaimed that  “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates”, or “if the power of judging be not separated from the legislative and executive powers.”

Madison sets a great discussion on the separation and interactions of the three branches in the British constitution, and seems to suggest that they are parallel to the U.S. Constitution with a president substituting a King. For instance, the King, just as the President, is the executive magistrate, who cannot make the law, but can veto the law, and he cannot administer justice in person, but can appoint justices or judges to administer it. That said, Madison conclusively argues that Montesquieu did not mean there had to be total separation of powers. It is only that the same person or group could not directly control the actions of more than branch.

Madison, Federalist paper#47, continues to discuss each state’s Constitution with respect to the issue of the separation of power. Despite the fact that the 13 States have words in their Constitutions that suggest total separation of power between legislative, executive and judicial, he shows, in reality, that none of them have kept the departments of power absolutely separate and distinct. To prove his argument, Madison brings the example of Georgia case: “In the constitution of Georgia, where it is declared that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other, we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority.”

Shortly, Madison’s argument is that a complete separation of powers between three branches of government in the United States is illusory. Not only the comparison with the British constitution proves that it has been the case of total separation, but also the 13 states’ constitutions reinforce the idea of a non-absolute separation. Madison, in conclusion, says: “What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America.”