One of the biggest criticisms of the newly proposed plan of government is that it violates the political belief that the legislative, executive and judicial and judicial branches should be separate and distinct. That there is too much mixing of powers in the U.S. Constitution and this threatens to progress to single body holding all the powers and trampling on the rights of the individuals.
The great authority on the division of powers is Montesquieu who held the highest regard for the British Constitution in which the branches had many interconnections. The threat, as articulated by Montesquieu, exists when the whole power of one branch is exercised by the same body that exercises the whole power of another branch. This did not occur in the British Constitution and has not been placed into the U.S. Constitution.
Each of the state constitutions as well, establishes a division of power that is not totally distinct and separate. There is not a single instance in which each branch has been kept totally separate. New Hampshire's constitution supports the idea that too much mixture is not good, but that some mixture is necessary. Therefore, the separation of powers described by the U.S. Constitution does not violate the principle of free government as it has ever been understood in America.
However, in a government of mixed powers, it is essential that each branch have a degree of control over the others. Most American constitutions have thought it enough protection to simply divide the duties amongst the different branches, but the experience of both Virginia and Pennsylvania provide evidence that dividing duties between branches does not protect each branch from the power of the others. The written demarcation of powers is not enough to prevent the concentration of powers in the hands of one body.
Some have argued that the people should be the final judge when one branch attempts to usurp the power of another, but there are many reasons why this would be dangerous to the government itself. Every appeal to the people to right the wrongs of government implies a defect in that government and reduces the respect the people give to that government. There is great danger in disturbing the public peace by frequently appealing to the public opinion. Finally, an appeal to the people would probably not adjust the imbalance that occurred in the first place.
In a representative republic, the most powerful branch is the legislative. The branches most likely to appeal to the people for usurpation of their powers would therefore be the executive or the judicial. The supporters of the executive and judicial branches be outnumbered by the supporters of the legislative branch, which is by its nature closer in proximity and affections with the people. Theoretically, the legislative branch represents the people's opinions. It is like asking the legislative branch to decide whether the legislative branch has usurped too much power.
Even if public opinion did fall on the side of the executive or judicial branch, it is likely that it is motivated to be there out of the persuasions of a strong political party. In any case, the people will decide more on their passions than on their reason leading to unjust balance of power between the branches.
All of the proposed external solutions to fixing a breach of power within mixed branches of government are ineffective. Therefore, it is necessary to structure the government in such a way that internal forces keep each branch of government in their proper place.
Each branch should have a will of its own and should have as little as possible to do with the appointment of members of the other branches. This is not as possible with the judicial branch, which requires particular qualifications as with the executive and legislative branches. These should be chosen from the authority of the people in different channels. Members of each branch should be as independent as possible from the others in terms of payments attached to their office.
The most important internal check on the power of each branch is to provide necessary personal motives to resist encroachments by the others. However, it is not possible to give each branch an equal power of self-defense because the legislative branch in a representative republic must by its nature be the most powerful. Therefore, this branch ought to be further divided into houses that have different processes for elections, different authorities, and that are not connected with each other.
There are two other characteristics of American society that will prevent the breach of power between the branches of government. In the American case, the authority of the people is first divided into a state and federal system of government, and then is further divided into separate departments at each level. Therefore, there is a double level of security to the rights of the people. It is also necessary to protect one part of society against another part. In America, this happens as a result of the diversity of different classes, regions and interests within the nation. The rights or interests of the minority have little chance of being usurped by a unified majority.
The larger the society, the more likely it is to effectively self-govern. And the righteous changes and mixture of federal ideas inherent in the U.S. Constitution will provide for such a large republican government that protects the rights of individuals while providing for the well being of the society.
In discussing the separation of powers and the checks and balances that have been placed within the structure of government described by the U.S. Constitution, Publius does not actually mention the specific checks and balances used by the three branches of government. He argues instead by proving other forms of checks and balances to be ineffective, and by reassuring the reader that the proposed plan of government is well guarded by the diversity of the people, and the division of the people's authority among many channels of government.
The system of checks and balances placed in the U.S. Constitution is probably one of its most unique characteristics, and one of the reasons for the longevity of the government. Included within the Constitution are checks on the process of making a law, in which each branch can check the authority of the other. A bill can either originate in the executive or legislative branch, but must gain the approval of the other to continue onto a law. Even if the president vetoes a law, it can be approved by congress. The judicial branch guards against the constitutionality of all laws introduced either by the legislative or executive branch. There is never a time when the power to enact, execute and judge a law rests in one branch.
The system of checks and balances also serves to protect the United States from a military dictatorship while providing the advantages to a single commander in chief. Although the President is the Commander-in-chief during wartime, Congress is the only branch authorized to declare war, or to fund the army and navy. The strength of an executive branch, free to make war and ignore proposed legislation are clearly checked by the strength of Congress. If either the President or the legislative branch act in a way judged to be beyond their authority, the judicial branch can mark their actions as unconstitutional and prevent them from continuing.
Most of the checks built into the system are not specific as the ones relating to making laws and declaring war, but serve to generally delineate the lines of authority between the three branches. The judicial branch is the least described in the U.S. Constitution. Members of the judicial branch are appointed by the executive branch, with the approval of the legislative branch, can make final and absolute rulings on the actions of either the legislative or executive branch, and can only be removed from office by conviction of the legislative branch.
Although there are checks on the legislative branch, it has the least delineated checks on its authority because it most directly represents the people. It is the most accountable to the beliefs of the people, and this serves as an automatic check on its power. Representatives that serve in the House of Representatives are accountable every 2 years to their constituents in their individual state. They must always concern themselves with acting in a way dictated by the people or risk losing a re-election.
Publius referred to the practical problem of appealing to the people each time one branch encroached upon the powers of another. Since the legislative branch is the most powerful branch in a republic, it would most likely be the two other branches asking for an appeal. Then it would be like requesting the people, as represented by the legislative branch, to place a check on their own power. Trusting that the other checks in place, the executive branch to veto a piece of legislation and the judicial branch to declare it unconstitutional, such appeals to the people will not be necessary.
Furthermore, the people of the United States differ so drastically in their interests and opinions that they will be unable to act as a monolithic political force, and this brings greater safety to the nation. Competing interests will always serve to check one another's power because they jealously guard their own. In the same way as it would be unlikely for an executive to amass such a huge standing army as to become a military dictator, because it is checked by the legislative branch approving such measures, it would be unlikely for congress to successfully declare the presidency to be hereditary, because in addition to it being unconstitutional, not enough people would agree on this policy.
All of the checks placed on the government by the U.S. Constitution are improvements over the Articles of Confederation. Had the Confederation Congress been a stronger body, it could have easily amassed the executive, judicial and legislative powers into its own hands with no check on its authority but the resistance of the states. As it was the central government had no checks on the power of the states, either, but the states amassed a significant portion of the power under the Articles and left the central government weak.
The Constitution not only provides for checks between the branches of the central government, but checks between the state and federal systems of government, and a constant opportunity for the people to check the authority of the government through re-election. This creates the double protection that Publius referred to in the essays.