Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

Will he asks parchment barriers marking out with

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constitutional edifice rests. Will, he asks, “parchment barriers” – marking out “with precision, the boundaries” of each department in the constitution – serve to contain “the encroaching spirit of power?” Such barriers he finds have “been greatly overrated” by the drafters of the state constitutions; they have not served to prevent the “legislature department” from “every where extending the sphere of its activity and drawing all power into its impetuous vortex.” 17 Will appeals to the 14. Ibid., 48/257. 15. Ibid.,, 71/371. 16. Ibid., 51/269. 17. Ibid.,, 48/256-57. 267
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people when there is an evident breach of the constitutional separation serve the purpose of maintaining the constitutional separation? Again, he answers in the negative for various reasons: such appeals, suggesting defects in the Constitution, would undermine the popular respect for it; they would arouse the “public passions” and thereby dangerously “disturbing the public tranquility.” “But the greatest objection of all,” he contends, is that such appeals would not preserve the constitutional equilibrium; given the number, influence, and prestige of the legislators, the people would most likely take their side. But even if this were not the case, he observes, the popular decision would not “turn on the true merits of the question,” but instead upon partisan considerations. Consequently, he concludes, “passions” and not “reason” would carry the day. 18 Would appeals to the people at fixed intervals serve to maintain the prescribed separation? Once again he finds multiple reasons to reject this solution. If the transgressions occur close to the time of appeals, passions will again dominate. If the transgressions be distant from the time of appeal, he concludes, they may have already taken root and “would not be extirpated” or they may have already accomplished their “mischievous effects” before any remedy could be applied. In addition, he notes, the prospect of “distant prospect of public censure” would not serve as an effective deterrent particularly against the encroachments of a numerous assembly. 19 2.1. The Constitutional Solution In Federalist no. 51, clearly taking into account the foregoing considerations, Madison sets forth his solution that rests in part on a blending of powers. In essay no. 47, by way of answering the Anti-Federalist critics, he contends that a high degree of blending is consonant with the separation of powers doctrine. In this connection he observes that British constitution, which served as the model for the “celebrated Montesquieu,” does not provide for “departments ... totally separate and distinct from each other.” 20 From this Madison adduces that Montesquieu held that only when “the whole power of one department is exercised by the same hands which possess the whole power of another department” are “the fundamental principles of a free constitution ... subverted.” 21 Clearly Madison believed such a wide latitude of blending necessary since he contends at the outset of essay no. 51 that the “only answer” for “keeping each” of the “constituent
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