In these passages there is a recognition that the

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in these passages there is a recognition that the elements of liberal constitutionalism – i.e., the institutions and processes long associated with divided powers – are essential for the rule of law and the liberty as well as the very survival of popular or republican government. 10. The Spirit of the Laws , trans. Thomas Nugent (New York: Hafner Publishing Co., 1949), bk. XI, sec. 6. 11. The Federalist , 47/251-52. 12. Ibid., 9/37. 13. Ibid., 9/38. 266
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At another level, that relating to the problem of maintaining the constitutional separation, a conviction prevailed that the legislature would be the greatest threat, i.e., the branch most likely to usurp the powers and functions of the executive and judicial departments. Madison drives this point home forcefully in Federalist no. 48: “in a representative republic,” in which the executive powers are “carefully limited, both in extent and duration,” but where the representative “assembly ...inspired by a supposed influence over the people,” possessing “an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions.” 14 Hamilton makes the same observation later in discussing the president’s power of veto where he writes of a “tendency...almost irresistible” on the part of the legislature to “absorb” the other branches. “The representatives of the people, in a popular assembly,” he continues, “seem sometimes to fancy, that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter.” 15 This concern over legislative usurpation was, no doubt, fueled by the experiences at the state level. Madison, for instance, in Federalist essay no. 48 quotes extensively from Jefferson’s “Notes on Virginia” concerning the legislative usurpation of executive and judicial powers in that state. In addition, the more indefinite nature of legislative powers and functions compared to those of the executive and judiciary, coupled with the fact that historically the political ends sought through separation involved greater legislative control over and diminution of executive or royal authority, led Madison’s to conclude that, for good or ill, “in republican government, legislative authority the necessarily predominates.” 16 That the legislature would most likely be an aggressor in its relations with the executive and judicial branches played a significant role in Madison’s answer to the question with which he was preoccupied in essays nos. 48, 49, and 50, namely, how to maintain the necessary constitutional separation. In many ways these essays are the richest in revealing the assumptions upon which the entire constitutional edifice rests. Will, he asks, “parchment barriers” – marking out “with
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  • Fall '16
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  • Separation of Powers

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