In the Federalist Papers, James Madison and others outline their logic both in favor of and against ratification of the Constitution. One of the largest parts of these arguments was the discussion of separation of powers and functions. James Madison outlined one problem inherent in having a multi-branched government—namely the idea of encroachment.
He viewed this as a problem with several sources and proposed several solutions. The Constitution redresses the problem of encroachment in several ways. He also feels that in the views of today, we must evaluate if Madison was correct in perceiving encroachment as a problem. We must also evaluate if Madison’s source was correct. Madison also felt that the new Constitution did not violate a basic political maxim of having the political departments separate and distinct.
First of all, we must define what Madison means by “encroachment.” In Federalist 47, Madison uses the British government’s constitution as a basis for his definition. At its core, encroachment is where each branch of government encroaches upon the powers and duties of the other branches of government.
Under the British system, he says, “the executive magistrate forms an integral part of the legislative authority. He alone has the perogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts (Madison, 1788).” Additionally, “all the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils (Madison, 1788).”
Also in Federalist 47, Madison identifies the sources of encroachment. To whit, the sources of encroachment are the very states themselves. He gives several examples, but points out that in each case, there is an “eye to the danger of improperly blending the different departments (Madison, 1788).” Complete distinction of the various branches, while an ideal goal to aspire to, was nearly impossible to gain simply because the nature of governance made each branch dependent upon each other.
Madison viewed this as a problem because he felt that “the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one dissoluble bond of unity and amity (Madison, 1788).” In other words, laws are made and executed by the same body, tyranny will almost certainly result. Additionally, he felt that the governing bodies would misunderstand that pre-established limits and would not work within them, thus expanding their powers when making decisions and intentionally or not encroaching upon the different branches of government.
Madison proposed several things that would help control encroachment. One of the proposals was adopted at the Constitutional Convention. That is, to have a lack of a hereditary monarch. This would help usurp tyranny because placing limitations on the length and extent of the executive’s power and tenure would also control encroachment.
Of all the departments, Madison was most fearful of the legislative. Its far-reaching powers would lead most definitely to encroachment. Additionally, he said that the assembly would seek to “indulge all their jealousy and exhaust all their precautions (Madison 1788).” In other words, the assembly would be more prone to encroachment because it had power over who would fill the positions in other departments—from cabinet positions to judgeships, the legislature encroaches on nearly every aspect of every department.
The next solution Madison proposed was the appealing to the people through a convention. This concept was brought forth in Federalist 49. His idea was to call a convention whenever two of the three branches “shall concur in opinion, each by the voices of two-thirds of their whole number (Madison, 1788).”
This convention would be a “convention … necessary for altering the Constitution or correcting breaches of it (Madison, 1788).” Madison thought this was the ultimate solution in correcting encroachments into each of the different departments. He states quite forcefully in Federalist 50 that PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION (Madison, 1788).”
Finally, Madison proposed giving each department a constitutional means to resist encroachment. This would definitely end the encroachment problem as Madison saw it, because each department would be armed to deal with any encroachments. He saw the largest chance of encroachment to come from the legislative branch and to keep it from becoming too powerful, he proposed dividing the legislature into branches with a different election schedule and different functions, and therefore they are as little connected as possible (Madison, 1788).
The Constitution redresses the idea of encroachment very easily. It simply divides the three branches of government and assigns certain powers to each. For example, the legislative branch does exactly that, legislates, but in order to completely do its job, it requires the executive branch to sign the bills into laws and provide a budget. The other check on legislative power is the judicial branch. The judicial branch makes sure that the legislative branch does not overstep its authority by passing laws detrimental to the American people.
We must evaluate in our twenty first century vision if Madison did indeed get this problem right. Is encroachment as big a problem as Madison thought, or is it simply a necessary evil? Is encroachment as it exists, and its sources as Madison saw them, correct? Do his solutions work in a twenty first century context or do they simply stonewall an already slow and arduous process? These are the questions that we need to answer in order to apply Madison’s ideas to our modern governance.
Encroachment as Madison saw it is a problem, but a necessary evil. Because of our delicate democracy, we must have some level of encroachment among the departments. The whole concept of checks and balances revolves around the idea that each department must necessarily encroach upon the power of another to keep it from moving outside its constitutional powers. The sources as Madison saw them were indeed correct. The traditions created by the writers of the state constitutions created the problem of encroachment. Since the problem was so entrenched, divorcing encroachment in the states from encroachment in the federal government is nearly impossible.
Tradition is a very hard thing to get rid of, and Madison was right to see it, but wrong to try to eliminate it from the federal mélange. Madison’s solutions are somewhat beneficial, as some are already in place, but others would be too difficult to implement and would stonewall an already slow and arduous process. The limitation of the extent and duration keeps the executive from becoming too powerful. The legislature already limits encroachment due to its expansive lawmaking abilities and duties.
How did Madison not feel the new Constitution not violate that political maxim of not blending the three branches of government? The answer is that they did not blend. Each department is separate and distinct, with its own set of duties and responsibilities, yet each is dependent on the others so each does not gain too much power.
Madison also feels that there are “means and personal motives (1788)” that will help maintain the separation of powers as defined in the Constitution. By this, Madison means that the people that run the department should have constitutional means at their disposal in order to be able to resist the encroachments of the other branches. He feels that human nature is such that people would make a grab for power, and such means should be in place “to control the abuses of government (Madison, 1788).” Constitutional restrictions would keep such grabs from happening, and control the machinations of people intent on tyranny.
The Jeffersonian strict separation of powers would not work in a flexible and dynamic government. It would be a recipe for tyranny. By having strict separation of powers, there would be no checks on the powers of each branch, and each branch would be allowed to become almost as powerful as it wanted.
The legislative branch could push through legislation of its choosing with no regards for the power of the presidency and the judicial. The judicial could kill any legislation it did not like and pass law from the bench, and the presidency could overrun the other two branches. This would set up a situation of tyranny that would never be able to be rectified. However, Madison (1788) tells us that “in republican government, the legislative authority necessarily predominates.” His solution was to divide the legislature into parts, thus emasculating it to keep it from overrunning the other two branches.
Madison got the idea of encroachment right. From his perspective, encroachment was a problem with easy solutions. Even though it was entrenched in our society from colonial days, the establishment of the three branches of government along with assigned powers assured that there would be no encroachment of one branch onto another. Some of his solutions were easy, while others were more difficult. Madison would be proud of what has been accomplished and would be a welcomed visitor in our time. He would be a sage advisor and would be able to give us insight into how our constitution was designed to work and would give us direction on where to go next. We need to continue to look at his words for insight and input in order to make our Constitution a more living, breathing document.
Madison, James. “Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention.” The Federalist Papers No. 49, 01 Feb 1788 6 Mar 2009 <http://wwwfounding fathers.info/federalistpapers>.
Madison, James. “The Particular Structure of the New Government and The Distribution of Power Among Its Different Parts.” The Federalist Papers No. 47, 01 Feb 1788 6 Mar 2009 <http://wwwfoundingfathers.info/federalistpapers>.
Madison, James. “Periodical Appeals to the People Considered.” The Federalist Papers No. 50, 05 Feb 1788 6 Mar 2009 <http://wwwfoundingfathers.info/federalistpapers>.
Madison, James. “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” The Federalist Papers No. 51 08, Feb 1788 6 Mar 2009 <http://wwwfoundingfathers.info/federalistpapers>.
Madison, James. “These Departments Should Not Be So Far Separated as to Have Constitutional Control Over Each Other.” The Federalist Papers No. 48, 05 Feb 1788 6 Mar 2009 <http://wwwfoundingfathers.info/federalistpapers>.