Puzzles about Separation of Powers and the Centralization of Power

September 17, 2023   Joseph Kochanek

  • Rights and Liberties
  • Blog

With it being Constitution Day, it is apt to take a look back at the Federalist Papers, which were written by James Madison, Alexander Hamilton, and John Jay to explain and justify the Constitution during the process of its ratification.  Trying to consider a single line of argument across the Federalist Papers can be a significant challenge – one way to approach this challenge is to do what the authors of the Federalist Papers did, and break up the argument. In that spirit, here is the first in a series of blog posts about puzzles that emerge in the Federalist Papers. The description of each of the puzzles leaves the solution relatively open, seeking not to resolve it once and for all but to offer tools that each of us can use to achieve a resolution for ourselves. 

What do we mean by separation of powers? 

One of the noteworthy elements of the Federalist Papers is the explanation one finds there for the separation of powers among the branches of the national government. Now, the authors of the Federalist Papers did not invent the concept of separation of powers – they themselves cited Montesquieu, a French political theorist who wrote earlier in the 1700s. And there were other writers who wrote about something like the same concept – Immanuel Kant at about the same time as ratification, and John Locke about a century earlier, just to name two. And even without reading political theorists from the 1700s, you can understand the concept and its importance: one can think of it as the division of labor as applied to politics. Under separation of powers, different agents within the government have different jobs – the legislature in making laws, the executive in executing them, the judiciary in interpreting them.  

This may seem straightforward – what is the puzzle? Separation of powers is important in the argument of several essays of the Federalist Papers, but essays 47 and 48 are especially noteworthy. As described in Federalist no. 47, the authors of the Federalist Papers felt it necessary to offer answers to arguments against the Constitution on the basis of concerns about the Constitution’s failure to create a sufficient separation of powers. The answer that one finds in the Federalist Papers to these concerns is subtle.  

Madison’s interpretation of Montesquieu led him to the conclusion that Montesquieu stood for separation of powers, but also in certain respects a blending of powers. Madison’s explanation for this was expressed in a theory vs. practice framework. In order to have separation of powers in practice, a government must allow in some ways for powers to be blended (in the language of Federalist no. 47) or even for each branch to be given a measure of “constitutional control over the others” as described in Federalist no. 48. So part one of this puzzle goes something like this: separation of powers in practice, according to the Federalist Papers, is only realized under conditions of a partial sharing or blending of powers.  

That is part one of the puzzle – here briefly is part two. The American Revolution had been fought against the empire of Great Britain. However, Madison observed in Federalist no. 47, Britain was the practical example that Montesquieu had in mind when he considered the character of political liberty.  The curiosity of course, is that the American Revolution had been fought against the rule of Britain, with the rhetoric of the revolution stressing the notion of a war of liberty against tyranny. But the justification of the separation of powers looked to a writer who, quoting Madison in Federalist no. 47, “appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty.”  

Is the centralization of power a problem, or a solution to a problem? 

Another puzzle made apparent by reading the Federalist Papers is that the arguments therein often seem both to affirm the necessity of the centralization of political power and to deny that the centralization of political power under the US Constitution should be perceived as a threat. Taking up the first of these points, the weakness of the government that preceded the Constitution – under the Articles of Confederation – was a central concern in the Federalist Papers. It would not be too much to say that the defects of that government – as Hamilton put it in Federalist no. 15, “the frail and tottering edifice” – were the most important reason why the Constitution was created. Of course, it is one thing to say that a stronger government would be necessary. But how much stronger? There is not a clear answer to that question in the Federalist Papers. In Federalist no. 23, in focusing especially on foreign policy, Hamilton asserted that the government should have as much power as necessary to fulfill its duties, but did not straightforwardly define the limits of those duties, except to say that the government should have as much power as would be necessary to preserve public safety.  

However, there are several points in the Federalist Papers where the authors describe in more limited terms the powers of the federal government. Indeed, there are parts of the argument in which they affirm the continuity of the Constitution with the Articles of Confederation, such as in Federalist no. 2. Beyond this, there are several points in the Federalist Papers in which the authors argued that the creation of the federal government would not cause the state governments to lose too much power. For instance, in Federalist no. 34 Hamilton argued that the Constitution would provide the federal government and the state governments with “co-equal authority” on taxation. More than once, Madison argued against the idea that the federal government would reduce the states to dependence on the national government, claiming in Federalist no. 45 that there was as much or more reason to believe that the national government would, generally, be dependent on state governments.  

The puzzle here in certain ways ties into the puzzle about the separation of powers. It seems plausible to believe that some concern about the Constitution’s centralization of power was rooted in a sense that centralized and distant power was the at the core of American hostility to British rule. If part of the justification of the Revolution was at its root a rejection of the legitimacy of centralized and distant power, then once again the legacy of Britain – and the struggle against Britain – was both central to and curiously implicit in the debate over the Constitution. 

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