1.

PRELIMINARIES; BACKGROUND/DRAFTING; WHO IS JAMES MADISON (DANA)

James Madison biography

James Madison was born on the 5th of March, (O.S.) 1751. His parents James Madison & N.
Conway Madison resided in the County of Orange in Virginia. At the time of his birth they were
on a visit to her mother, who resided on the Rappahannoc, at Port Conway in the County of
King George.
https://www.jstor.org/stable/1923519

He studied in the College of New Jersey, now the Princeton. He is a student of history and
government, well-read in law, he participated in the framing of the Virginia Constitution in 1776,
served in the Continental Congress, and was a leader in the Virginia Assembly.

Political involvements before the constitutional convention

Why was there a drafting of a new constitution

The federalist papers in general

When delegates to the Constitutional Convention assembled at Philadelphia, the 36-year-old

Madison took frequent and emphatic part in the debates.

Madison made a major contribution to the ratification of the Constitution by writing, with
Alexander Hamilton and John Jay, the Federalist essays. In later years, when he was referred
to as the “Father of the Constitution,” Madison protested that the document was not “the off-
spring of a single brain,” but “the work of many heads and many hands.”

Post-Framing career

He was president from March 4, 1809 until March 4, 1817.

(Presidential Portrait of James Madison by John Vanderlyn 1816; White House Historical
Association (White House Collection))
https://www.whitehousehistory.org/photos/james-madison

In retirement at Montpelier, his estate in Orange County, Virginia, Madison spoke out against
the disruptive states’ rights influences that by the 1830’s threatened to shatter the Federal
Union. In a note opened after his death in 1836, he stated, “The advice nearest to my heart and
deepest in my convictions is that the Union of the States be cherished and perpetuated.”

The Presidential biographies on WhiteHouse.gov are from “The Presidents of the United States
of America,” by Frank Freidel and Hugh Sidey. Copyright 2006 by the White House Historical
Association. https://www.whitehouse.gov/about-the-white-house/presidents/james-madison/

James Madison and his times

2. FP51 (WENDY)

To the People of the State of New York:

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among
the several departments, as laid down in the Constitution?

[…] by so contriving the interior structure of the government as that its several constituent parts may, by their mutual
relations, be the means of keeping each other in their proper places.”

● construct the government in a way that "its several constituent parts may, by their mutual
relations, be the means of keeping each other in their proper places.

________________________________________________________________________________

[…] Essential to the preservation of liberty […] each department should have a will of its own;

[…] it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should
be drawn from the same fountain of authority, the people, through channels having no communication whatever with
one another.

● Members of each branch should have as little influence as possible in the appointment of
members in the other branches. A system of checks and balances must be devised so that
encroachment is minimized.
________________________________________________________________________________

Madison’s few general observations

● enable us to form a more correct judgment of the principles and structure of the government
planned by the convention.
________________________________________________________________________________

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional
rights of the place. “

[…] But what is government itself, but the greatest of all reflections on human nature? If men were angels, no
government would be necessary. If angels were to govern men, neither external nor internal controls on government
would be necessary.
________________________________________________________________________________

“But it is not possible to give to each department an equal power of self-defense. In republican government, the
legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into
different branches; […]”

● since the legislative authority tends to predominate in republican government, the new
Constitution provides for a bicameral legislature comprising a House and a Senate, each
designed differently.
________________________________________________________________________________

Federal system of America

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single
government; and the usurpations are guarded against by a division of the government into distinct and separate
departments. In the compound republic of America, the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people. The different governments will control each other, at the
same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.
Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the
rights of the minority will be insecure.

● federal system, in and of itself, provides a "double security" for the people's interests. Power
is divided into two distinct governments, national and state, and then it is further subdivided
into distinct and separate departments.
________________________________________________________________________________

“There are but two methods of providing against this evil: the one by creating a will in the community independent of
the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of
citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. “

● To guard against injustice inflicted by a majority of citizens acting against the interest of a
minority, society must encourage such a wide range of diversity that the emergence of an
unjust combination becomes extremely improbable.
________________________________________________________________________________
“In a free government the security for civil rights must be the same as that for religious rights.”

● A free government benefits from a multiplicity of interests, just as freedom of religion benefits
from a multiplicity of sects.

________________________________________________________________________________

“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be
obtained, or until liberty be lost in the pursuit. “

“In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as
truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the
stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition,
to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more
powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all
parties, the weaker as well as the more powerful.”
________________________________________________________________________________
Conclusion

“And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the FEDERAL PRINCIPLE.”
PUBLIUS.

3. MONTESQUIEU INFLUENCE (KIEZLLE)

The Enlightenment philosopher Montesquieu coined the phrase “trias politica,” or separation of
powers, in his influential 18th-century work “Spirit of the Laws.” His concept of a government divided into
legislative, executive and judicial branches acting independently of each other inspired the framers of the
U.S. Constitution, who vehemently opposed concentrating too much power in any one body of
government. In the Federalist Papers, James Madison wrote memorably of the necessity of the
separation of powers to the new nation’s democratic government: “The accumulation of all powers,
legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of
tyranny.”

Montesquieu argued that the best way to secure liberty and prevent a government from
becoming corrupted was to divide the powers of government among different actors who would
check each other. For example, Montesquieu warned that

“Were the executive power not to have a right of restraining the encroachments of the
legislative body, the latter would become despotic; for as it might arrogate to itself what
authority it pleased, it would soon destroy all the other powers.”

Madison and the Founding Fathers took heed of Montesquieu’s warning by establishing an
independent executive (the President), legislative (the Congress), and judiciary (the Supreme
Court) in the federal Constitution. Madison masterfully protected the separation of powers by
establishing a thorough system of checks and balances as well.

Publius emphasizes that governments "administered by men over men" cannot be expected to be
sustained by a virtuous governing body alone; hence, checks and balances, separation of powers,
federalism and representation are all recognitions of the very human quality of government. "It may be a
reflection on human nature that such devices should be necessary to control the abuses of government, "
he observes, " but what is government itself but the greatest of all reflections on human nature?"
(Federalist Paper No. 51)
"From these facts, by which Montesquieu was guided, it may clearly be inferred that, in
saying 'There can be no liberty where the legislative and executive powers are united in
the same person, or body of magistrates,' or, 'if the power of judging be not separated from
the legislative and executive powers,' he did not mean that these departments ought to have
no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his
own words import, and still more conclusively as illustrated by the example in his eye, can
amount to no more than this, that where the WHOLE power of one department is exercised by
the same hands which possess the WHOLE power of another department, the fundamental
principles of a free constitution are subverted. (Federalist Paper No. 47)

The purpose in writing the Federalist Papers is multifaceted, all at once he seeks to defend the
constitution against the Anti-Federalists/charges, to convince the public of the urgency of ratifying the
Constitution without further adjustments, to pursuade his readers of the Constitution's merits, and to
cultivate a general reverence for Constitution. Even though Montesquieu is highly respected among the
Anti-Federalist, Publius is cautious about openly invoking a French baron with an unapologetic
monarchical bent. The war fought against the British monarchy is still fresh in American's minds, and so
appearing too Montesquieuian could tarnish the image of Publius as the citizen upon a hill.

Publius then proceeds to examine the distribution of powers within the state constitutions, and
comments on how these correspond to Montesquieu’s doctrine. Furthermore, Montesquieu does not
intend his works to be interpreted as templates for constitutional designs; far from it, he seeks
rather to direct the legislator’s attention to societal particulars, while always keeping a knowledge
of universals. Publius’ insight does not require the backing of eminent persons because his
arguments reveal wisdom and prudence on their own. This allows Publius to take Montesquieu’s,
 and others’, teaching and form it anew in an American light. Publius, as the enlightened legislator, is a
student of Montesquieu; but as the citizen lodestar, Publius offers a genius all his own. A legacy is thus
established, whereby “Americans will look to the explanation of Publius, who will become our authority,
even as Montesquieu was his”

REFERENCE:

Madison, Montesquieu and the Separation of Powers By Christopher John Kemp (2010)
The Extended Republic: Agreement Between Montesquieu and Publius By Lisa Piergallini (2015)

4. HISTORICAL INFLUENCE OF FP51 (TAL)

The U.S constitution has been highly influenced by James Madison. It is often called as
the “Madisonian Model”. Today, we will discuss the impact of Baron de Montesquieu’s spirit of
the law to James Madison’s Federalist Paper no. 51 and how it shaped today’s U.S Constitution
of 1787. The system of checks and balances in government was developed to ensure that no
one branch of government would become too powerful. The framers of the U.S. Constitution
built a system that divides power between the three branches of the U.S. government—
legislative, executive and judicial—and includes various limits and controls on the powers of
each branch.
Charles de Secondat, also known as Baron Montesquieu’s major work, The Spirit of the
Laws ,was regarded as political gospel‟ at the Philadelphia Convention in America. He believed
that political liberty for the ordinary citizen can only be ensured if government is organized on
the principle of separation of power. Montesquieu however, did not invent the doctrine of
separation of powers. The aforementioned concept could be traced back to as early as
Aristotle’s work in his book, Politics wherein he emphasized and introduced the three branches
of the government. The former, however, emphasized certain elements in it that had not
previously received such attention, particularly in relation to the judiciary, and he accorded the
doctrine a more important position than did most previous writers.
However, the influence of Montesquieu cannot be ascribed to his originality in this respect, but rather to the manner and timing of the
doctrine’s development in his hands. In every government there are three sorts of power: the legislative; the executive in respect to things dependent
on the law of nations; and the judiciary in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary
or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives
embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise
between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
Federalist No. 51, titled: "The Structure of the Government Must Furnish the Proper
Checks and Balances between the Different Departments", an essay by James Madison, was
published on February 8, 1788, under the pseudonym Publius, the name under which all The
Federalist papers were published. Federalist No. 51 addresses means by which appropriate
checks and balances can be created in government and also advocates a separation of powers
within the national government. This idea of checks and balances became a crucial document in
the establishment of the modern U.S. system of checks and balances. One of its most important
ideas, an explanation of check and balances, is the often quoted phrase, "Ambition must be
made to counteract ambition."
In creating this system, Madison's logical solution was to ensure that laws and strong
ideas were not enacted by a small group of partisan individuals was to use a federalist system
where each level of government had different branches, each branch having the authority to
impact legislation proposed by other branches. One of the main ways that Federalist Paper 51
was able to encourage checks and balances was by emphasizing the word liberty and by
describing that liberty would directly result from the implementation of these governmental
concepts.
Furthermore, Madison emphasized that although the branches were meant to have
checks and balances; the branches would only function to their fullest extent if they were
independent of one another. By being independent of one another, the branches would be able
to focus on their purpose and the system of checks and balances would only really come into
play if disagreements and issues arose within the three branches.
SOME OF HIS SUGGESTIONS:
1. Remedy to ensure that the legislative branch, the strongest branch, does not abuse its
power
- divide the legislative into two groups with different means of election and different
representatives
2. Ways to protect the "separate and distinct exercise of the different powers of
government
- Each branch has its own abilities in government
- Each branch should not be able to appoint members of other branches
3. Three ways that the different powers of government are kept separate and distinct
- When appointing judiciary members, they must meet qualifications
- All members of each branch must be appointed by the people
4. Way to ensure that the legislative branch does not abuse its power
- divide the legislative into two groups with different means of election and different
representatives
IMPACT:
In the U.S Constitution, also known as the madisonian model, Separation of powers was
first established in the United States Constitution, the founding fathers included features of
many new concepts, including hard-learned historical lessons about the checks and balances of
power. Similar concepts were also prominent in the state governments of the United States. As
colonies of Great Britain, the founding fathers considered that the American states had suffered
an abuse of the broad power of parliamentarism and monarchy. As a remedy, the US
Constitution limits the powers of the federal government through various means, in particular,
the three branches of the federal government are divided by exercising different functions, and
the executive and legislative powers are separated in origin by separate elections and the
judiciary is kept independent, each branch controls the actions of others and balances its
powers in some way.
In the United States Constitution, Article 1 Section I gives Congress only those
"legislative powers herein granted" and proceeds to list those permissible actions in Article I
Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in
Article II places no limits on the Executive branch, simply stating that, "The Executive Power
shall be vested in a President of the United States of America." The Supreme Court holds "The
judicial Power" according to Article III, and it established the implication of judicial review in
Marbury v. Madison under the Marshall court.
 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the
United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S.
Constitution. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision
established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the
constitutionally separate executive and judicial branches of the American form of government.
The presidential system adopted by the Constitution of the United States obeys the
balance of powers sought, and not found, by the constitutional monarchy. The people appoint
their representatives to meet periodically in a legislative body, and, since they do not have a
king, the people themselves elect a preeminent citizen to perform, also periodically, the
executive functions of the State.
The direct election of the head of state or of the executive power is an inevitable
consequence of the political freedom of the people, understood as the capacity to appoint and
depose their leaders. Only this separate election of the person who has to fulfil the functions
that the Constitution attributes to the president of the government, so different by its nature, and
by its function, from the election of representatives of the electors, allows the executive power to
be controlled by the legislative and submitted to the demands of political responsibility.
In the Federalist Papers, James Madison wrote memorably of the necessity of the separation of powers to the new nation’s democratic
government: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.
It is equally evident, that the members of each department should be as little dependent
as possible on those of the others, for the emoluments annexed to their offices. Were the
executive magistrate, or the judges, not independent of the legislature in this particular, their
independence in every other would be merely nominal.
- James Madison, The Federalist Papers No. 51
The principle of separation of powers between the Executive,
Legislative, and Judicial branches of government is part of the basic structure
of the Philippine Constitution. Thus, the 1987 Constitution provides that: (a)
the legislative power shall be vested in the Congress of the Philippines (Art. VI,
Sec. 1.); (b) the executive power shall be vested in the President of the
Philippines (Art. VII, Sec. 1.); and (c) the judicial power shall be vested in one Supreme Court
and in such lower courts as may be established (Art. VIII, Sec. 1.)
Indeed, adherence to the principle of separation of powers which is
enshrined in our Constitution is essential to prevent tyranny by prohibiting the
concentration of the sovereign powers of state in one body.

"If men were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary.
James Madison, The Federalist Papers No. 51

5. FP51 TODAY - (GREGG)

History has shown you that time and time again that unlimited power in the hands of one
person or group in most cases means that others are suppressed or their powers curtailed. The
separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for
all.
 Even in works of fiction, such as George Orwell’s 1984, Margaret Atwood’s The
Handmaid’s tale, and even Suzanne Collin’s the Hunger Games have warned us about how, as
Lord Acton would say, “Absolute power, corrupts absolutely”

One of the most popular among our generation is the video game and comicbook series
Injustice: Gods Amongs where DC Comics played with the idea that what if Superman the most
powerful being in the DC universe just snapped and became a dictator to push his “noble
agenda” of eradicating crime. The answer obviously lead to a lot of fictional deaths and human
rights abuses.

231 years after it was written, have we headed James Madison’s the call of separation
of powers?

According to the Think Tank, Freedom House, Democracy is undergoing an “alarming”

decline across the world as a growing number of countries move towards authoritarian rule
where a total of 68 countries suffered a decline in political rights and civil liberties during the
past 12 months, with only 50 countries registering any progress in these areas.

Even though there are checks and balances in some of these countries to counter this
unlimited power, most people now ask does this concept still exist when events where the
National People’s Congress in China rubber-stamped an amendment abolishing a two-term limit
on the presidency and allowing their president an indefinite rule or even in our country where a
move by the executive caused the removal of our Chief Justice to which the Executive
department also had the prerogative of choosing who to replace the person they removed.

At a first glance, separating the powers into the Executive, Judiciary, and Legislative is
an easy concept to grasp but this concept found in the U.S. Constitution and echoed into our
1987 Constitution has been found to be messy by Scholars like Jeffrey Tulis and Constitutional
experts like Luis Fisher.

Case in point, like in our country, where the Judiciary can decide of cases and
convictions but the President can grant absolute pardons that seemingly overturn these decision
or where our president has the power to tell the legislative to work faster on certain bills.

It’s hard to draw the line of where the powers of each department end and the power of
each department to check each other especially in a country like ours where political lines have
further blurred this distinction.

The question of man now in 2019 now is whether or not separation of powers is still
enough to safeguard our civil and political liberties?
 OTHERS:
WHY DID HE WRITE FP51
CONNECT TO CH2
HUMAN RIGHTS
CHECK AND BALANCES