September 18, 2025 • 14 mins
We explore Federalist Papers 47 and 48 with Dr. Sean Beinberg, examining Madison's sophisticated understanding of separation of powers and the subtle distinction between separated powers and checks and balances.
• Dr. Beienberg identifies these papers as among the most important Federalist writings
• Madison responds to critics who claimed the Constitution had poor separation of powers
• Tyranny defined as concentration of powers, regardless of whether in one, few, or many hands
• Madison argues tyranny can exist even in a popularly elected democracy if powers aren't separated
• Separation requires giving each branch control over others, not complete division
• "Parchment barriers" aren't enough - branches need actual mechanisms to check each other
• Madison's fear of legislative power relates specifically to state constitutions after the Revolution
• Federalist 48 also provides a framework for when to fear executive overreach
• Contemporary politics may actually match Madison's conditions for dangerous executive power
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Welcome back everyone .
We have Dr Sean Beinberg backwith us and we're looking at
Federalist papers that you know.
Maybe, if you're lookingthrough a high school curriculum
, maybe aren't as well known,but they're still very important
.
So the ones we're looking attoday have to deal with
separation of power.
So, dr Beinberg, today we'relooking at Federalist 47 and 48.
(00:20):
Can you tell us what those areabout?
Speaker 2 (00:23):
Sure, I think these are two of the most important
Federalist papers.
I would say maybe two ofcertainly the top 10, maybe the
top five, along with theFederalist 70, which sort of
lays out the logic of executivepower.
I think they give you the bestunderstanding of separation of
powers.
47 and 48 are concentratingmore on the logic of separation
of powers and what it means inthe American political system
(00:46):
and why the Constitution isdesirable.
It's worth emphasizing that inthese Federalist papers Madison
actually points out and says alot of people are complaining
that this system has a poorseparation of powers and he says
if they were correct about thatthen everybody should oppose
this Constitution.
Because he says a properfunctioning were correct about
that, then everybody shouldoppose this constitution.
Because he says a properfunctioning of a separation of
(01:08):
powers is so essential to goodgovernance.
But he goes on to say but itturns out they're wrong that in
fact the separation of powersdesigned in these two Federalist
Papers is in fact reallysophisticated and thoughtful and
reflects to use the modernconsultant's term best practices
as well as the logic ofMontesquieu.
It's hard to overstate howimportant Montesquieu is
(01:32):
politically to these folks atthe time.
The Bible is the text that theycite the most politically.
Montesquieu is second.
So Montesquieu is basicallytheir political Bible.
And so Madison starts byagreeing with the critics and
Montesquieu when he says theconcentration of the different
powers the legislative, theexecutive and the judicial in a
(01:56):
single.
He says a single hand.
But that's an important sort ofasterisk.
There would be the verydefinition of tyranny.
But then what's interesting ishe walks through and says okay,
what would it mean to be?
What would this despotism, whatwould this tyranny look like?
And he says actually quitestrikingly, that it can be in
one hand or a few hands, or manyhands, right?
(02:20):
So the sort of classic exampleof a tyranny we think of is sort
of a military dictator with agun pointing.
But he says no, it could beactually a small group like an
oligarchy.
But strikingly he also says itcould be many hands.
An entire large governmentcould be a tyranny.
And then he says and the waythat it is chosen also in a
(02:41):
sense is agnostic to tyranny itcould be hereditary, it could
have seized power by force, butit also could have been elected.
So if you think through thelogic here, madison says a
tyranny can be both many handsand elected, which is to say
that a popularly electedrepublic or democracy, according
to Madison, can itself still bea tyranny.
(03:02):
It's not about the number,necessarily, of people who are
invested in governing a country,about how they got it, he says.
Actually, the more dangerousway to think of tyranny is if
they can do multiple things atonce, that is to say they don't
have checks on their authorityor power is not decentralized in
(03:23):
a meaningful way.
And so he says the core of thiswe think of is the promotion of
liberty and the prevention oftyranny.
And so what he does inFederalist 47 and 48 is he walks
through and says basically, weall agree, separation of powers
is good.
And then he says okay, well,let's look at Montesquieu.
Montesquieu doesn't say thatseparation of powers needs to be
(03:46):
completely divided in the sensethat no branch has an influence
over the other.
That's the critique that'sgetting raised against the
Constitution is that there's alittle bit of mixing of powers.
And I'll spare the listeners.
If you want to go back and readthe text itself, it's quite
good, but his sentences are kindof long and be hard to sort of
(04:06):
read here.
But he effectively saysMontesquieu agrees with me on
this, and he does a reading ofMontesquieu.
He says Montesquieu agrees withme on this.
And he does a reading ofMontesquieu.
He says everybody recognizesthat Montesquieu worshipped
England as the model of visionof a separation of powers.
And he points to the stateconstitutions and he says
effectively, in all of them wesee a mixing of the separation
(04:27):
of powers, of the powers in thesense that the legislature has a
little bit of executive power,so the Senate has to consent to
treaties.
Right, that is part of theexecutive power.
On the foreign policy side,conversely, the executive has a
little bit of legislative power,it has a veto.
(04:48):
And he walks through anothersince examples of how that plays
out.
But he says look, we see thisin england, we see this in the
state constitutions.
He says some of the stateconstitutions have this really,
really robust language sayingseparation of power shall be
purely and perfectly and alwaysobserved.
And then he goes through andsays but actually, if you look
at the way they operate, itdoesn't work that way.
He says the better ones are theones like the massachusetts
(05:11):
constitution, and remember thatthe founders view the
Massachusetts Constitution,which is mostly John Adams'
handiwork, as the model that theUS Constitution is.
The Pennsylvania.
One is the one they don't likeand Madison is explicitly
critical of that in theseFederalist Papers that it has
weak, really weak, separation ofpowers and therefore is
effectively tyrannical.
(05:31):
So he says look, even in theexamples, we always have mixing
of powers and therefore iseffectively tyrannical.
So he says look, even in theexamples, we always have mixing
of powers.
And he says OK, well, why isthat a good thing?
And this is where he spells outa really subtle argument.
In popular conversation we thinkof the term separation of
powers and checks and balancesas interchangeable, but they're
not.
Separation of powers underMontesquieu, under Madison,
(05:53):
means no branch can do basicallya second branch's job.
The legislature can't executethe law, the executive can't
adjudicate the law, so nobodygets to do two things.
So that's separation of powers.
Checks and balances is thepiece where there's a little bit
of blending, where each of themhas a little bit of a veto
(06:14):
point or a block of the otherones.
And Madison says and this isactually a really great way to
make sure that the separation ofpowers is protected, because
otherwise one branch could juststart doing another branch's job
, job.
And he said this is where thefamous line about parchment
barriers comes from, which issomething that he actually pulls
(06:39):
from, quoting by name ThomasJefferson and the notes on the
state of Virginia, whereJefferson says look, if we look
at the Virginia Constitution andsome other ones in history,
there haven't been barriers tostop the branches from
interfering with each other.
You can write on a list thisbranch shouldn't do this.
But unless you give them anactual operational tool to block
what another branch is doing,they will inevitably take power
(07:01):
from the others.
And so, as my colleague, myformer colleague Zach German,
used to say, the real paradoxfrom Madison is Federalist 48,
is unless the departments be sofar connected and blended as to
give each a constitutionalcontrol over the others, the
degree of separation which themaxim requires can never in
(07:24):
practice be keep them separate.
You must give the executive theability to block legislation,
otherwise the legislature couldpass laws that would screw with
the executive's ability toenforce the law.
You must give the executive apart.
You know the pardoning power isquintessentially executive, but
(07:46):
in a way it borders on dealingwith sort of cases, and you have
to basically give them a littlebit of a control of each other,
and so you give them each aveto to block things the other
one does, but none of them getto affirmatively do things the
other one does.
That's the paradox and that'sthe subtle distinction between
the separation of powers andchecks and balances.
(08:08):
So 47 and 48 are laying outthat part.
Speaker 1 (08:14):
So if I'm teaching this to a class, do you think
that the best way to do thiswould be to pair both of those
Federalist Papers together, asopposed to just teaching one or
the other?
Speaker 2 (08:24):
Yeah, they are so deeply linked to one another, I
mean I think they're effectivelyinextricable.
What you could do what I do inmy introductory classes is I
have the students skip.
This wounds me as a stateconstitution scholar, but I just
have them skip.
When Madison goes into the realheavy detail of the operations
of the state constitutions andif you do that, they're only
(08:46):
like two or three pages eachthey're pretty short if you take
out the sort of exhaustivedetail.
Now, it's good that Madisondoes that, because he's writing
to an audience that keeps sayingwe love our states, we love our
state constitutions, and so youcan see him saying aha,
checkmate, like there's actuallymore robust separation of
powers in this than the stateconstitutions that you're that
you're fawning over here.
(09:07):
So, yeah, I think that that's.
I think that the two of themare effectively inseparable.
I do think there's one otherthing that's worth adding here,
because there's a line fromFederalist 48, while we're
talking about the context ofstate constitutions, that often
gets misinterpreted the contextof state constitutions, that
often gets misinterpreted.
(09:27):
So Madison has the very famousline where he says the
legislature is basicallyeverywhere a vortex.
It's always the one that suckspower to itself, and so this has
often been treated as Madisonis scared of legislative power.
He's okay with executive power.
But Madison is talking about aspecific moment in time when, in
the wake of the AmericanRevolution remember the
legislatures had been elected bythe people.
(09:48):
That's what they liked, thatwas what they wanted to have
most political power.
The governors were generallyroyally appointed and they
didn't like the governors.
So the earliest stateconstitutions make the governors
extremely weak.
As a result, the Pennsylvaniaconstitution effectively
dissolves a governor.
There's this really, reallyweak nominal figure and Madison
(10:11):
says everywhere that they'relooking around, that we're
looking around, we can see rightnow the legislature is taking
power because that's how theybuilt the constitutions as an
overreaction or not necessarilyan overreaction, but a reaction
to the American Revolution.
But what he says is let's becautious though, and not
overreact the other way andassume that the legislature will
(10:31):
always be doing right that.
In fact, going back toFederalist 47 and Montesquieu,
an elected multiple government,multiple person government, can
still be tyrannical.
But he does go through inFederalist 48, and this is
something people often skip over.
But he says there are scenarioswhen, in fact, you would be
concerned about executive power.
He says executive powerquintessentially like the power
(10:54):
to execute the law.
That's pretty limited.
But he says if you had ascenario where the executive
isn't limited to that, where theexecutive has a mandate of
popular support behind it, whichagain which he thinks the
legislators will have, and hesays and if your legislature is
actually aggressive about power,those are the scenarios where
(11:15):
your executive will be weak.
But if your executive is doingnon-executive things that can
claim a popular mandate and ifyou have a weak legislature, by
Madison's rubric you actually doneed to fear executive power,
right.
And so I think one of thethings that we certainly have
seen in the last two-thirds of acentury is the executive is
(11:36):
doing more lawmaking, isclaiming more and more of a
mandate.
This is from since WoodrowWilson, particularly due to
Roosevelt and a legislature thatgives power away, right.
So I just think it's worthpausing and saying.
Madison is actually reallysubtle and really smart here in
Federalist 48, in a way that Ithink is often ignored, where he
said he gives you a rubric ofwhen you should be afraid of
(11:56):
executive power, and I thinkit's fair to say that most of
those metrics actually look morelike contemporary politics than
the universe he's inhabiting,which is one where the governors
are weak and disempoweredbecause everybody hates them,
because they have the strongmemory of the American
Revolution, and so that's notnecessarily the same historical
(12:17):
moment we're under.
So this is again one of theplaces where the Federalist
Papers are actually really keenin their understanding of
institutional dynamics and thenature of politics.
But they're describing ahistorical universe that exists
then, but they're giving you thelogic to think through politics
more broadly have a podcast onMontesquieu that I will link in
(12:47):
the show notes, but thank youfor your expertise.
Speaker 1 (12:49):
And Federalist 47 and 48 and an extra shout out to Dr
Zach German.
Welcome back everyone .
We have Dr Sean Beinberg backwith us and we're looking at
Federalist papers that you know.
Maybe, if you're lookingthrough a high school curriculum
, maybe aren't as well known,but they're still very important
.
So the ones we're looking attoday have to deal with
separation of power.
So, dr Beinberg, today we'relooking at Federalist 47 and 48.
(00:20):
Can you tell us what those areabout?
Speaker 2 (00:23):
Sure, I think these are two of the most important
Federalist papers.
I would say maybe two ofcertainly the top 10, maybe the
top five, along with theFederalist 70, which sort of
lays out the logic of executivepower.
I think they give you the bestunderstanding of separation of
powers.
47 and 48 are concentratingmore on the logic of separation
of powers and what it means inthe American political system
(00:46):
and why the Constitution isdesirable.
It's worth emphasizing that inthese Federalist papers Madison
actually points out and says alot of people are complaining
that this system has a poorseparation of powers and he says
if they were correct about thatthen everybody should oppose
this Constitution.
Because he says a properfunctioning were correct about
that, then everybody shouldoppose this constitution.
Because he says a properfunctioning of a separation of
(01:08):
powers is so essential to goodgovernance.
But he goes on to say but itturns out they're wrong that in
fact the separation of powersdesigned in these two Federalist
Papers is in fact reallysophisticated and thoughtful and
reflects to use the modernconsultant's term best practices
as well as the logic ofMontesquieu.
It's hard to overstate howimportant Montesquieu is
(01:32):
politically to these folks atthe time.
The Bible is the text that theycite the most politically.
Montesquieu is second.
So Montesquieu is basicallytheir political Bible.
And so Madison starts byagreeing with the critics and
Montesquieu when he says theconcentration of the different
powers the legislative, theexecutive and the judicial in a
(01:56):
single.
He says a single hand.
But that's an important sort ofasterisk.
There would be the verydefinition of tyranny.
But then what's interesting ishe walks through and says okay,
what would it mean to be?
What would this despotism, whatwould this tyranny look like?
And he says actually quitestrikingly, that it can be in
one hand or a few hands, or manyhands, right?
(02:20):
So the sort of classic exampleof a tyranny we think of is sort
of a military dictator with agun pointing.
But he says no, it could beactually a small group like an
oligarchy.
But strikingly he also says itcould be many hands.
An entire large governmentcould be a tyranny.
And then he says and the waythat it is chosen also in a
(02:41):
sense is agnostic to tyranny itcould be hereditary, it could
have seized power by force, butit also could have been elected.
So if you think through thelogic here, madison says a
tyranny can be both many handsand elected, which is to say
that a popularly electedrepublic or democracy, according
to Madison, can itself still bea tyranny.
(03:02):
It's not about the number,necessarily, of people who are
invested in governing a country,about how they got it, he says.
Actually, the more dangerousway to think of tyranny is if
they can do multiple things atonce, that is to say they don't
have checks on their authorityor power is not decentralized in
(03:23):
a meaningful way.
And so he says the core of thiswe think of is the promotion of
liberty and the prevention oftyranny.
And so what he does inFederalist 47 and 48 is he walks
through and says basically, weall agree, separation of powers
is good.
And then he says okay, well,let's look at Montesquieu.
Montesquieu doesn't say thatseparation of powers needs to be
(03:46):
completely divided in the sensethat no branch has an influence
over the other.
That's the critique that'sgetting raised against the
Constitution is that there's alittle bit of mixing of powers.
And I'll spare the listeners.
If you want to go back and readthe text itself, it's quite
good, but his sentences are kindof long and be hard to sort of
(04:06):
read here.
But he effectively saysMontesquieu agrees with me on
this, and he does a reading ofMontesquieu.
He says Montesquieu agrees withme on this.
And he does a reading ofMontesquieu.
He says everybody recognizesthat Montesquieu worshipped
England as the model of visionof a separation of powers.
And he points to the stateconstitutions and he says
effectively, in all of them wesee a mixing of the separation
(04:27):
of powers, of the powers in thesense that the legislature has a
little bit of executive power,so the Senate has to consent to
treaties.
Right, that is part of theexecutive power.
On the foreign policy side,conversely, the executive has a
little bit of legislative power,it has a veto.
(04:48):
And he walks through anothersince examples of how that plays
out.
But he says look, we see thisin england, we see this in the
state constitutions.
He says some of the stateconstitutions have this really,
really robust language sayingseparation of power shall be
purely and perfectly and alwaysobserved.
And then he goes through andsays but actually, if you look
at the way they operate, itdoesn't work that way.
He says the better ones are theones like the massachusetts
(05:11):
constitution, and remember thatthe founders view the
Massachusetts Constitution,which is mostly John Adams'
handiwork, as the model that theUS Constitution is.
The Pennsylvania.
One is the one they don't likeand Madison is explicitly
critical of that in theseFederalist Papers that it has
weak, really weak, separation ofpowers and therefore is
effectively tyrannical.
(05:31):
So he says look, even in theexamples, we always have mixing
of powers and therefore iseffectively tyrannical.
So he says look, even in theexamples, we always have mixing
of powers.
And he says OK, well, why isthat a good thing?
And this is where he spells outa really subtle argument.
In popular conversation we thinkof the term separation of
powers and checks and balancesas interchangeable, but they're
not.
Separation of powers underMontesquieu, under Madison,
(05:53):
means no branch can do basicallya second branch's job.
The legislature can't executethe law, the executive can't
adjudicate the law, so nobodygets to do two things.
So that's separation of powers.
Checks and balances is thepiece where there's a little bit
of blending, where each of themhas a little bit of a veto
(06:14):
point or a block of the otherones.
And Madison says and this isactually a really great way to
make sure that the separation ofpowers is protected, because
otherwise one branch could juststart doing another branch's job
, job.
And he said this is where thefamous line about parchment
barriers comes from, which issomething that he actually pulls
(06:39):
from, quoting by name ThomasJefferson and the notes on the
state of Virginia, whereJefferson says look, if we look
at the Virginia Constitution andsome other ones in history,
there haven't been barriers tostop the branches from
interfering with each other.
You can write on a list thisbranch shouldn't do this.
But unless you give them anactual operational tool to block
what another branch is doing,they will inevitably take power
(07:01):
from the others.
And so, as my colleague, myformer colleague Zach German,
used to say, the real paradoxfrom Madison is Federalist 48,
is unless the departments be sofar connected and blended as to
give each a constitutionalcontrol over the others, the
degree of separation which themaxim requires can never in
(07:24):
practice be keep them separate.
You must give the executive theability to block legislation,
otherwise the legislature couldpass laws that would screw with
the executive's ability toenforce the law.
You must give the executive apart.
You know the pardoning power isquintessentially executive, but
(07:46):
in a way it borders on dealingwith sort of cases, and you have
to basically give them a littlebit of a control of each other,
and so you give them each aveto to block things the other
one does, but none of them getto affirmatively do things the
other one does.
That's the paradox and that'sthe subtle distinction between
the separation of powers andchecks and balances.
(08:08):
So 47 and 48 are laying outthat part.
Speaker 1 (08:14):
So if I'm teaching this to a class, do you think
that the best way to do thiswould be to pair both of those
Federalist Papers together, asopposed to just teaching one or
the other?
Speaker 2 (08:24):
Yeah, they are so deeply linked to one another, I
mean I think they're effectivelyinextricable.
What you could do what I do inmy introductory classes is I
have the students skip.
This wounds me as a stateconstitution scholar, but I just
have them skip.
When Madison goes into the realheavy detail of the operations
of the state constitutions andif you do that, they're only
(08:46):
like two or three pages eachthey're pretty short if you take
out the sort of exhaustivedetail.
Now, it's good that Madisondoes that, because he's writing
to an audience that keeps sayingwe love our states, we love our
state constitutions, and so youcan see him saying aha,
checkmate, like there's actuallymore robust separation of
powers in this than the stateconstitutions that you're that
you're fawning over here.
(09:07):
So, yeah, I think that that's.
I think that the two of themare effectively inseparable.
I do think there's one otherthing that's worth adding here,
because there's a line fromFederalist 48, while we're
talking about the context ofstate constitutions, that often
gets misinterpreted the contextof state constitutions, that
often gets misinterpreted.
(09:27):
So Madison has the very famousline where he says the
legislature is basicallyeverywhere a vortex.
It's always the one that suckspower to itself, and so this has
often been treated as Madisonis scared of legislative power.
He's okay with executive power.
But Madison is talking about aspecific moment in time when, in
the wake of the AmericanRevolution remember the
legislatures had been elected bythe people.
(09:48):
That's what they liked, thatwas what they wanted to have
most political power.
The governors were generallyroyally appointed and they
didn't like the governors.
So the earliest stateconstitutions make the governors
extremely weak.
As a result, the Pennsylvaniaconstitution effectively
dissolves a governor.
There's this really, reallyweak nominal figure and Madison
(10:11):
says everywhere that they'relooking around, that we're
looking around, we can see rightnow the legislature is taking
power because that's how theybuilt the constitutions as an
overreaction or not necessarilyan overreaction, but a reaction
to the American Revolution.
But what he says is let's becautious though, and not
overreact the other way andassume that the legislature will
(10:31):
always be doing right that.
In fact, going back toFederalist 47 and Montesquieu,
an elected multiple government,multiple person government, can
still be tyrannical.
But he does go through inFederalist 48, and this is
something people often skip over.
But he says there are scenarioswhen, in fact, you would be
concerned about executive power.
He says executive powerquintessentially like the power
(10:54):
to execute the law.
That's pretty limited.
But he says if you had ascenario where the executive
isn't limited to that, where theexecutive has a mandate of
popular support behind it, whichagain which he thinks the
legislators will have, and hesays and if your legislature is
actually aggressive about power,those are the scenarios where
(11:15):
your executive will be weak.
But if your executive is doingnon-executive things that can
claim a popular mandate and ifyou have a weak legislature, by
Madison's rubric you actually doneed to fear executive power,
right.
And so I think one of thethings that we certainly have
seen in the last two-thirds of acentury is the executive is
(11:36):
doing more lawmaking, isclaiming more and more of a
mandate.
This is from since WoodrowWilson, particularly due to
Roosevelt and a legislature thatgives power away, right.
So I just think it's worthpausing and saying.
Madison is actually reallysubtle and really smart here in
Federalist 48, in a way that Ithink is often ignored, where he
said he gives you a rubric ofwhen you should be afraid of
(11:56):
executive power, and I thinkit's fair to say that most of
those metrics actually look morelike contemporary politics than
the universe he's inhabiting,which is one where the governors
are weak and disempoweredbecause everybody hates them,
because they have the strongmemory of the American
Revolution, and so that's notnecessarily the same historical
(12:17):
moment we're under.
So this is again one of theplaces where the Federalist
Papers are actually really keenin their understanding of
institutional dynamics and thenature of politics.
But they're describing ahistorical universe that exists
then, but they're giving you thelogic to think through politics
more broadly have a podcast onMontesquieu that I will link in
(12:47):
the show notes, but thank youfor your expertise.
Speaker 1 (12:49):
And Federalist 47 and 48 and an extra shout out to Dr
Zach German.
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