Bench Memos

The Perennial Publius, part 51

“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.”

These lines, and a few others like them, have justly lodged James Madison’s Federalist No. 51 in everyone’s “greatest hits of Publius” list, leading to the anthologizing of this essay, and its reprinting in textbooks, about as often as the thematically very similar No. 10.  In this closing essay on the general structure of the separation of powers, Madison moves from his rejection of “external” controls on the different branches of the government to considering how its “interior structure” can be arranged so that the system is, in a way, self-regulating.

 The first desideratum is having three truly independent branches, each capable of acting on its own view of what is best, without subservience to the others.  The second is the equipment to do battle with each other–the textbook checks and balances of the veto, advice and consent, and so forth.  But the capstone of Madison’s argument is his reliance not on the virtue and public-spiritedness of public officials, but on their self-interest.  “Ambition must be made to counteract ambition.”  A powerful government, with powerful offices, will attract ambitious men (and now, women) who desire and enjoy the exercise of power.  Madison isn’t worried about this so much as he is counting on it, as a fact of political life that can be turned to advantage in a well-contrived set of institutions.

The highest purpose of the separation of powers is the preservation of the rights and interests of a free self-governing people.  Publius’s breakthrough in the understanding of constitutional government is evident in his argument that officeholders’ interest in their own power, in their legacy, and in the relative clout of their institutional authority can be friendly rather than inimical to freedom.  The object is to see to it that “the private interest of every individual [in public office], may be a centinel over the public rights.”

We have the lesson before our eyes.  Whichever side wins the current struggle over our Iraq war policy, the struggle itself is part of the ongoing self-balancing function of American government, which keeps any one branch from achieving the overweening power that is liberty’s foe.

(For explanation of this recurring feature, see here.)

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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