Federalist #48

These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other  (Madison) 

Federalist number 48 is written by James Madison.  It pertains to the separation of the three departments: Judiciary, Legislative, and Executive branches of government.  The paper begins by stating the Constitution is not enough to prevent one branch from usurping the power of another branch.  The paper describes the similarity between the tyranny of the Executive branch and the Legislative branch.  Examples are given in the cases of Virginia and Pennsylvania to show that the Legislative branch can become tyrannical, even though the Constitution forbids it.

Madison wants security to be built into the system to prevent one branch of government from usurping the powers of another.  He believes that the Constitution, which clearly forbids one branch from interfering into the business of another branch, would not be enough to protect a feeble branch from being overtaken by a more powerful branch. 

There are two types of tyrannical rules that can occur.  There is the Executive branch creating a monarchy, which would be the rule of one or a few people, with the Judiciary and Legislative branches being weak and powerless.  There is also the Legislative branch creating the rule of a few hundred, with the Judiciary and Executive branches being weak and powerless.   Because there are no precise limits on the power of the Legislative branch, there would be a Legislative tyranny, rather than an Executive tyranny

Even though any branch usurping power over the more feeble branches would be undesirable, it is more likely the Legislative branch would usurp far more easily than the Executive because the Legislative has access to people’s money and control the purse strings of the other branches of government.  Thomas Jefferson stated that in Virginia, the Legislative branch controls the other branches of government.  He said “one hundred and seventy-three despots would surely be as oppressive as one”.  He would argue that it is as bad as having one despot ruler, equating legislative tyranny with Executive tyranny.

There are two examples given by Madison to show how the Legislative branch of States was in fact usurping the powers of the other branches, even though the Constitution of those States clearly forbid it.  There was Virginia, as stated by Thomas Jefferson, and there was Pennsylvania, where the Legislative branch violated the Constitution and usurped the Judiciary and Executive branches of governments.

Madison believes that there are no barriers provided to prevent a person from one branch exercises power in another simultaneously.  Because the Judiciary and Executive are dependent on the legislative, there is no mechanism to prevent the Constitution from being violated.  Having it written on a paper we call a constitution is not enough to prevent “tyrannical concentration of all powers of government in the same hands”.