The Penguin Guide to the United States Constitution Part 7

AMENDMENT XX (1933).

SECTION 1.

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

SECTION 2.

The Congress shall a.s.semble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

SECTION 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

SECTION 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

SECTION 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

SECTION 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Many of the most consequential amendments to the Const.i.tution (e.g., the first ten amendments) are remarkably brief, while some of the more arcane amendments seem to require more elaborate verbiage. This is certainly the case with the Twentieth Amendment.

Traditionally, new presidents took office in March, creating a significant time gap between their election in November and their inauguration. In some cases, this time lag had serious consequences. For example, during the period between Abraham Lincoln's election and inauguration, his Democratic predecessor, James Buchanan, found himself to be a lame-duck president at a time when Southern states were seceding from the union. In recognition of the improvements in communication and transportation since the Const.i.tution was originally adopted, the Twentieth Amendment reduced the amount of time elapsing between the president's election and his inauguration. It also moved the meeting time of a newly elected Congress from March to January 3, preventing the meeting of a lame-duck session of Congress whose actions might not be consonant with the will of the electorate as expressed in the November elections.

The remaining parts of the Twentieth Amendment seek to clarify the role of Congress in determining a plan of succession in case of the death or removal of both the president and vice president. For much of the nineteenth century, Congress designated the president pro tempore of the Senate as next in line of succession; from the 1880s until 1947, Congress stipulated that the secretary of state would be next in line. The decision to change the law and provide for the Speaker of the House to a.s.sume office in case of the president and vice president's absence was shaped by the desire to have a popularly elected official-in this case the leader of the legislative branch most directly responsible to the people-a.s.sume the presidency.

AMENDMENT XXI (1933).

SECTION 1.

The eighteenth article of amendment to the Const.i.tution of the United States is hereby repealed.

SECTION 2.

The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

SECTION 3.

The article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by conventions in the several States, as provided in the Const.i.tution, within seven years from the date of the submission hereof to the States by the Congress.

Just as the Eighteenth Amendment is the only const.i.tutional amendment to restrict the rights of the American people, the Twenty-first Amendment, which ended Prohibition, is the only amendment in the Const.i.tution to repeal a previous amendment. The Twenty-first Amendment does not specifically allow for the manufacture, transport, or sale of liquors but, rather, returns to the states the right to regulate alcohol distribution and consumption. This amendment is unusual in that it specifies that state conventions, rather than state legislatures, should be the bodies responsible for ratifying the amendment.

AMENDMENT XXII (1951).

SECTION 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

SECTION 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Although the people of the United States had expressed their will by electing Franklin D. Roosevelt president in four successive elections, in the aftermath of Roosevelt's terms in office many Americans began to have second thoughts about the wisdom of allowing a president to exceed what had previously been the "twoterm tradition" set by George Was.h.i.+ngton. By the terms of the Twenty-second Amendment, Presidents are limited to two terms, or if they have served at least two years of a previous president's term, to one term. Americans continue to disagree on whether "term limits"-either in the executive or legislative branches-are consistent with democratic governance, and there have been occasional attempts to repeal the Twenty-second Amendment, although none has come close to success thus far.

AMENDMENT XXIII (1961).

SECTION 1.

The District const.i.tuting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be ent.i.tled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

The District of Columbia, seat of the nation's government, has always occupied a peculiar place within our federal system. The Const.i.tution empowered Congress to designate a territory "not exceeding ten Miles square" as the nation's capital but specifically intended that the "federal district" not be within the boundaries or jurisdiction of any particular state. Therefore, while the federal government exercises much of its enormous power within the District of Columbia, that territory has been denied voting representatives in Congress, and until the pa.s.sage of the Twenty-third Amendment, its residents were denied the right to vote in presidential elections. By the terms of the Twenty-third Amendment the residents of the District of Columbia are ent.i.tled to vote for presidential electors, with the number of electors representing the district being equal to the number of senators and representatives that the district would have if it were a state. On the basis of its present population, that means three electors.

AMENDMENT XXIV (1964).

SECTION 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

Although the Fourteenth and Fifteenth Amendments were intended to ensure African Americans the right to vote, the imposition of a poll tax-a fee that citizens had to pay to the state or locality if they wished to vote-was a common device by which states, particularly those in the South, prevented low-income voters, who were often predominantly African American, from voting. The Twenty-fourth Amendment explicitly prohibits the imposition of taxes as a condition for voting. The amendment does not say anything about the use of the poll tax in state elections, but soon after the pa.s.sage of the Twenty-fourth Amendment, the Supreme Court, citing the "equal protection" clause of the Fourteenth Amendment, ruled that it was unconst.i.tutional for states to require the payment of poll taxes as a condition for voting in state elections.

AMENDMENT XXV (1967).

SECTION 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

SECTION 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

SECTION 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

SECTION 4.

Whenever the Vice President and a majority of either the princ.i.p.al officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately a.s.sume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the princ.i.p.al officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, a.s.sembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to a.s.semble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Although the Twentieth Amendment deals in part with the issue of presidential succession, the Twenty-fifth Amendment provides a more detailed description of how Congress should proceed in the event of the death or removal of a president or vice president, or in the case of the temporary disability of the president (for example, if the president falls seriously ill or undergoes an operation and is not able for a period of time to exercise the duties of his office). Eight American presidents have died in office, and one has resigned. And there have been several occasions when a president has been temporarily disabled (for example, when Ronald Reagan was wounded by a would-be a.s.sa.s.sin's bullet in 1985, he transferred power to his vice president, George H. W. Bush, while he was hospitalized).

The amendment also deals with the delicate question of how to deal with the disability of a president when the president himself is not willing to declare such a disability. For example, in 1918 President Woodrow Wilson suffered a stroke and many believed that his disability prevented him from carrying out the duties of his office effectively, but there were no means by which to resolve the issue. The Twenty-sixth Amendment stipulates that Congress may, if two-thirds of the members of both houses agree, provide written declaration that the president is disabled and then transfer power to the vice president.

AMENDMENT XXVI (1971).

SECTION 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

It is no accident that this amendment giving citizens eighteen years or older the right to vote was pa.s.sed at the height of the Vietnam War. Some of the reasoning behind the amendment was that if young men and women are old enough to serve and risk their lives in the military, then they should also be given the right to vote.

AMENDMENT XXVII (1992).

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The Twenty-seventh Amendment was originally part of the package of twelve amendments submitted to the states by the First Congress in 1789, but it was not ratified at that time. Agitation to reconsider the amendment resurfaced in the 1980s, as the public became increasingly unhappy over a series of pay raises that members of Congress awarded themselves. The provisions of this amendment make it impossible for members of Congress to put into effect increases in their salaries before the session in which they are serving has ended. By this mechanism, members of Congress seeking reelection have to justify their proposed increases in salary to voters during their reelection campaigns.

SELECTIONS FROM THEFEDERALIST PAPERS.

THE EIGHTY-FIVE ESSAYS appearing in New York City newspapers under the pseudonym Publius between October 1787 and May 1788 and later published as a single collection under the t.i.tle The Federalist Papers have achieved justifiable fame as an important statement of American const.i.tutional philosophy. Alexander Hamilton took the lead, recruiting James Madison and John Jay to join him in the effort. In all, Hamilton wrote fifty-one of the essays, Madison twenty-nine, and Jay five. The essays were written independently, with little collaboration among the three authors. Indeed, they were written under such constraints that there was seldom time for review or revision.

Looking at The Federalist Papers as a whole, one can see that Madison tended to write his essays on general issues of government and politics-on republicanism and representation in particular-while Hamilton focused on specific issues, such as taxation or the construction of the executive and judiciary. It is perhaps for that reason that Madison's essays, though const.i.tuting only about a third of the total, are the ones most often quoted and reprinted.

The Federalist Papers have grown more influential over time and have come to be considered an important means of understanding the intent of the framers of the Const.i.tution. In the period between 1790 and 1800, when leaders of the new republic were facing the challenge of creating a government that conformed to the precepts of their new Const.i.tution, The Federalist (the original published collection containing seventy-seven of the essays) was cited by the Supreme Court only once. In the whole of the nineteenth century, the essays were cited 58 times. In the first half of the twentieth century, they were cited 38 times, but in the last half they were cited no fewer than 194 times.

However much The Federalist Papers may on some occasions rise to the level of high-minded political theory, readers should also be aware that they were initially intended as political propaganda. Madison and Hamilton, whatever their intellectual gifts, were also practical politicians with a specific goal: to secure ratification of the Const.i.tution. In that sense, The Federalist Papers, like the Const.i.tution they were defending, need to be understood not merely as abstract const.i.tutional treatises but also as a product of the give-and-take of the turbulent era of eighteenth-century American politics.

This volume reprints the three Federalist essays that many scholars consider to be the most important of the eighty-five. "Federalist No. 10," which deals with the benefits of an "extended republic" in controlling the effects of "faction," and "Federalist No. 51," which lays out the doctrine of "separation of powers," were written by Madison. "Federalist No. 78," written by Hamilton, is not only a defense of an independent judiciary but also lays out the const.i.tutional argument for what would later be called "judicial review." The essays are presented in slightly abridged form.

FEDERALIST NO. 10: JAMES MADISON, NOVEMBER 22, 1787.

One of the most famous pieces of writing in all American history, "Federalist No. 10" takes a distinctly modern approach to the existence of "faction" and "interests" in American politics. Whereas most eighteenth-century commentators believed that the key to good government was to elect virtuous political leaders capable of transcending their own selfish interests, Madison accepted the existence of conflicting interests as an inherent part of any pluralist society. The best way to control the effects of faction, Madison argued, was to extend the sphere of government over a sufficiently large territory so that no one faction could obtain undue influence and subvert the public good.

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have in truth been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American Const.i.tutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side as was wished and expected. Complaints are every where heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice and the rights of the minor party; but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true. . . .

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of pa.s.sion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same pa.s.sions, and the same interests.

It could never be more truly said than of the first remedy, that it is worse than the disease. Liberty is to faction, what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his pa.s.sions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circ.u.mstances of civil society. A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human pa.s.sions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly pa.s.sions, and excite their most violent conflicts. But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different cla.s.ses, actuated by different sentiments and views. The regulation of these various and interfering interests forms the princ.i.p.al task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of Government. . . .

It is in vain to say, that enlightened statesmen will be able to adjust these clas.h.i.+ng interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote: It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Const.i.tution. When a majority is included in a faction, the form of popular government on the other hand enables it to sacrifice to its ruling pa.s.sion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. . . .

By what means is this object attainable? Evidently by one of two only. Either the existence of the same pa.s.sion or interest in a majority at the same time, must be prevented; or the majority, having such co-existent pa.s.sion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. . . .

From this view of the subject, it may be concluded that a pure Democracy, by which I mean, a Society, consisting of a small number of citizens, who a.s.semble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common pa.s.sion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and a.s.similated in their possessions, their opinions, and their pa.s.sions.

A Republic, by which I mean a Government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure Democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the Union.

The two great points of difference between a Democracy and a Republic are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand to refine and enlarge the public views, by pa.s.sing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice p.r.o.nounced by the representatives of the people, will be more consonant to the public good, than if p.r.o.nounced by the people themselves convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive Republics are more favorable to the election of proper guardians of the public weal: and it is clearly decided in favor of the latter by two obvious considerations.

In the first place, it is to be remarked that however small the Republic may be, the Representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a mult.i.tude. Hence the number of Representatives in the two cases, not being in proportion to that of the Const.i.tuents, and being proportionally greater in the small Republic, it follows, that if the proportion of fit characters, be not less, in the large than in the small Republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each Representative will be chosen by a greater number of citizens in the large than in the small Republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre on men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed, that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circ.u.mstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The Federal Const.i.tution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular, to the state legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compa.s.s of Republican, than of Democratic Government; and it is this circ.u.mstance princ.i.p.ally which renders factious combinations less to be dreaded in the former, than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compa.s.s within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. . . .

Hence it clearly appears, that the same advantage, which a Republic has over a Democracy, in controlling the effects of faction, is enjoyed by a large over a small Republic-is enjoyed by the Union over the States composing it. Does the advantage consist in the subst.i.tution of Representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied, that the Representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the encreased variety of parties comprised within the Union, encrease this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States; a religious sect, may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it, must secure the national Councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government. And according to the degree of pleasure and pride we feel in being Republicans, ought to be our zeal in cheris.h.i.+ng the spirit and supporting the character of Federalists.

PUBLIUS.

FEDERALIST NO. 51: JAMES MADISON, FEBRUARY 6, 1788.

Madison hoped that the new federal government would be strong and energetic, but at the same time he wished to prevent any one branch of the government from becoming too powerful. "If angels were to govern men," Madison reasoned, then "neither external nor internal controuls on government would be necessary." But since the tendency of all men, and of all branches of government, is to attempt to increase their power, it was necessary to devise structures within the federal government to prevent excessive concentrations of power. "Ambition must be made to counteract ambition," Madison a.s.serted, and the way to do this was to create a system of government in which each branch of that government operated in its appropriate sphere, serving at the same time as a check on the other branches.

To what expedient then shall we finally resort for maintaining in practice the necessary part.i.tion of power among the several departments, as laid down in the Const.i.tution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several const.i.tuent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so const.i.tuted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the const.i.tution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary const.i.tutional means and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the const.i.tutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.