If Men Were Angels: Madison's Defense of Constitutional Design

Dr. Alan Gibson continues his analysis of the Federalist Papers with a deep dive into James Madison's arguments for separation of powers in Federalist 51. Madison outlines his revolutionary approach to maintaining constitutional balance by harnessing human nature and self-interest rather than relying on parchment barriers or periodic constitutional revisions.

• Madison rejected simply writing down powers on parchment as insufficient to prevent encroachment
• Jefferson's proposal for constitutional conventions was dismissed as harmful to constitutional legitimacy
• The famous "ambition must be made to counter ambition" solution connects personal interest with constitutional duty
• Madison's system requires giving each branch the means and motives to resist encroachment from others
• The legislative branch is identified as most dangerous, requiring special constraints
• Executive and judicial independence are established through indirect elections and lifetime appointments
• Complete separation of powers is impossible; even Montesquieu's ideal English system featured power-sharing
• Anti-Federalists misunderstood separation of powers as requiring complete separation without checks and balances
• The Constitution meets the proper standard of separation of powers through its system of checks and balances

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Episode Transcript

Speaker 1 (00:00):
Welcome back everyone .
This is a continuation of DrAlan Gibson's Federalist 51.
Federalist number 48 says thatyou can try to just write these
powers down on a piece ofparchment.
You can enumerate the differentpowers exercised by the
different branches, spell it outin language on a constitutional

(00:24):
parchment, spell it out inlanguage on a constitutional
parchment and you can hope thateverybody will obey those
commands that are in thatparchment.
And Madison says that's notgoing to work.
We've seen from experience thatthat's simply not going to work
.
In 49 and 50, he deals with twoother what he calls external
ways that you might maintainseparation of powers.

(00:47):
One of them is a proposal fromThomas Jefferson about the state
government in Virginia.
And Jefferson says whenever twoof any of the three branches
again he's talking about theVirginia state government, it's
a proposal in a constitutionhe's proposing.
He says that whenever two ofthe three branches call for a

(01:12):
constitutional convention tomaintain separation of powers,
then that's or three branchesthat separation of powers was
being violated, then you call aconstitutional convention and
you address that issue.
Madison rejects that for anumber of famous reasons.

(01:36):
He believes that that will hurtthe institutional legitimacy of
your Constitution If you keeptrying to reform it.
You're going to rob it ofrespect and veneration, is his
phrase.
The other proposal is whether,then, waiting for these two

(01:57):
branches to agree with eachother that a new constitutional
convention is necessary, youhave one called at periodic
intervals.
So Jefferson believed that ageneration was every 19 years.
And another thing that he wrotehe said that you should.
This is a part of his ethos ofthe earth belongs to the living

(02:22):
and that each generation shouldgovern itself.
And anyway, he says, every 19years you should have a
constitutional convention.
Madison says that one is alsowrong.
It's subject to the same kindsof criticism as spontaneous
judicial review.
I mean constitutional review.
I mean constitutional review isso he rejects those three

(02:45):
methods of maintainingseparation of powers in 48, 49,
and 50.
Then, when you get to Federalistno 51, he lays out this very
famous argument for howseparation of powers is actually
going to be, for how separationof powers is actually going to

(03:13):
be institutionalized in theAmerican political system.
And his answer turns out to bethat you're going to give to
everyone.
His famous phrase is the answerconsists in giving to those who
administer each department thenecessary constitutional means
and personal motives to resistthe encroachment of others on

(03:34):
their powers.
And then he goes into the veryfamous language that he uses
ambition must be made to counterambition.
The interests of the man mustbe connected with the
constitutional rights of theplace.
It may be a reflection on humannature that such devices should
be necessary to control abusesof government.
But what is government itself?

(03:56):
But the greatest of allreflections of human nature?
If men were angels, nogovernment would be necessary.
If angels were to govern men,neither external nor internal
controls on government would benecessary.
Incidentally, when I wasgrading advanced placement exams
one year, some of the highschool AP graders were wearing

(04:18):
shirts that said if studentswere angels, or something like
that.
They had this kind of shirtthat they were doing like that.
Anyway, what Madison is sayingin all of that is that the
different representatives of thedifferent branches are going to
have a natural incentive andinclination to protect the

(04:43):
powers that are given to thatbranch of government by the
Constitution.
And what you have to do is toignite their interest in
preserving their sphere ofconstitutional authority if it's
invaded from another branch.

(05:06):
And so you mix the powers ofthe government in such a way as
to give each of the branchessome agency and control over the
other branches.
You intersperse their powers.
You incentivize each of thepeople who exercise those powers

(05:30):
to protect their sphere ofconstitutional power, and that
will, over time, provide themost realistic and practical
means for maintaining separationof powers.
You put human nature andinterest in service of the

(05:51):
preservation of separation ofpowers.
You don't try to make it anextraordinary sacrifice.
In other words, for the systemto achieve separation of powers
doesn't require a kind ofsuperhuman effort by the
legislatures.
What it requires the differentbranches, what it requires is

(06:15):
that they have a real interestin the power that they exercise
in the constitutional system.
And that is his solution tothis problem.
Now, that solution, if I can goback to what I said earlier
about the legislative branchbeing the branch most likely to

(06:37):
try to usurp the powers of theother branches he says that that
solution also entailscontrolling principally the
legislative branch.
So your system of separation ofpowers is going to be based
upon human nature and incentivesbased on interest.
It's also going to control thelegislative branch first and

(07:01):
it's going to do that by givingpower and independence to the
other branches of the government, so to the president, the
judiciary and even, within thelegislative branch, the Senate,
are going to have longer termsof office.
They are going to also sharepowers with the other branches,

(07:27):
and it is these features.
They're going to have indirectelections and they're going to
have longer terms of office, andthat is going to give them the
independence from thelegislative branch to check that
branch when it tries to invadetheir powers.

(07:48):
So it's essential to establishboth executive independence and
judicial independence.
You establish executiveindependence by having the
executive elected from somebranch other than the
legislative branch.
They considered legislativeelection of the president at the

(08:09):
Constitutional Convention andeventually rejected it because
it was a fundamental violationof separation of powers.
And so if you elect thepresident, of course the
president is elected in acomplex manner through the
Electoral College, but mostimportantly, it is independent

(08:31):
of the legislative branch.

(08:53):
No-transcript, in effect, forlife or for good behavior under
the Constitution.
So the scheme of separation ofpowers itself fortifies the
other branches over thelegislative branch to allow them

(09:13):
to prevent encroachments ofpower by one branch on the other
branch.
I did this somewhat out oforder, but I do want to go back
to Federalist no 47, becausethat makes an important point
too.
And what Madison has to show isthat the Constitution achieves
the integration of the idea ofseparation of powers in it.

(09:35):
But what he says there is that,as I said earlier, you cannot
have a complete and totalseparation of all of these
powers.
You can't do it and no one hasever really achieved that or
even tried.
He says Montesquieu isconsidered the oracle of

(09:56):
separation of powers.
He's considered the person andMontesquieu celebrates the
English Constitution.
But the English Constitutionhas a system of checks and
balances that shares powerbetween all of the branches too.
So it can't be proper to judgethe Constitution against this

(10:19):
unrealizable standard of what itmeans to have separation of
powers.
He also says that none of thestate governments themselves
achieve the kind of separationof powers that the
anti-federalists are wanting.
The anti-federalists look atany time there's a combination

(10:41):
of powers in the system and theysay, oh, that's a violation of
separation of powers.
The Anti-Federalists wereparticularly annoyed by the
Senate because the Senateexercises some executive powers
and has some control overjudicial appointments and things

(11:01):
like that, and they thoughtthat was a fundamental violation
of separation of powers andwould result in tyranny.
Madison's response to that is no, these powers are properly
placed there to controlinvasions from other branches.
And it's also the case that youhave to have this and it's not

(11:29):
a violation of the standard.
When you get a properunderstanding of separation of
powers and what that standard is, you will understand that the
Constitution meets that standard.
So just to reiterate theprimary points that I was making

(11:49):
here, madison surveys, acrossFederalist Numbers 47 to 51,
these different ways ofpreserving and maintaining
separation of powers.
He rejects the idea of simplywriting it down, of having
spontaneous constitutionalconventions called or periodic
constitutional conventionscalled, and he favors instead

(12:15):
the internal organization of thebranches sharing some degrees
of power so that they can resistencroachment from the other
branches.
And he argues in favor of theConstitution meeting the
standard of separation of powerswhen that standard itself is

(12:37):
properly understood.
And those are the two majorpoints that are carried across
those papers but also especiallyculminate in Federalist no 51.