Madison Makes a Strong Argument

¶ … Madison makes a strong argument concerning the separation of the branches of the government by introducing evidence contained in many of the State's constitutions, and he does so in a manner that reminds the reader of backing into an argument. He uses examples not only of the state's constitutions but he also includes the words of some of the leading statesmen of that era. Madison states that just because certain constitutions state that the branches should be separate and distinct, by observation, "we must perceive that the legislative, executive and judiciary departments are by no means totally separate and distinct from each other." (Kesler 2003-page 299) Madison then goes on to state that many of the duties and responsibilities of each individual branch oftentimes overlaps into another branch's territory. In quoting Montesquieu, Madison states; "There can be no liberty...if the power of judging be not separated from the legislative and executive powers...he did not mean that the departments ought to have no partial agency in, or no control over, the acts of each other." (pg 299) Since this was such a new and radical concept being introduced, Madison acquiesced to the possibility of shared responsibilities, and in fact, knew that was what would happen. So, even though he was a strong proponent for 'separate and distinct' he also knew that there were times when the branches would necessarily have to cooperate and work together.

In #48 Madison furthers his argument on the separate and distinct responsibilities of each governmental branch, especially in regard to the control each branch would have over each of the other branches.

Madison knew that this would be necessary due to the inherent nature of man to attempt to subvert power for his own purposes. Speaking of power Madison states; "It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it." (pg 305) Madison was, therefore, a firm believer in assigning power to each branch that could not be subverted, while at the same time he was in favor of allowing overruling power(s) to each branch over the other two branches, but only to be used during times of extreme circumstances. Madison also knew that it will take more than "a mere demarcation on parchment" to be a "sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." It seems as if Madison was as concerned as the 'anti-federalists' of the time concerning the structure of the new government and wished to alleviate those concerns by allowing each branch control over its own destiny, while at the same time giving the other two branches the authority to step in if something were to go seriously wrong. He was especially concerned of the legislature. He states; "If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made." (pg 308) He wished to ensure that event would not happen. He also states that the executive, similar to the legislative, branch could also be usurped and that there should be no elective despotism, whether that despotism was one man in the executive office, or a group of despots in the legislative, either situation would be unacceptable.