Antifederalists throughout the country voiced a wide range of objections to the Constitution, some times even disagreeing among themselves on these criticisms. Yet they shared four core criticisms: (1) the omission of a bill of rights; (2) that the creation of a consolidated national government endangered the sovereignty of the states; (3) the weakness and insufficient representation in the House of Representatives; and (4) the inadequate separation of powers—especially the danger inherent in the Senate’s executive and judicial powers. Throughout the ratification debate, James Madison defended the Constitution against these criticisms. His arguments in “The Federalist” No. 51 (New York Independent Journal, 6 February 1788) were novel, ingenious, and, at times, even eloquent—the last, a trait not usually found in Madison’s writings which were usually more scholarly, logical, technical, detailed, and systematic.
In “The Federalist” No. 51 Madison first addressed the issue of the separation of the three branches of the federal government. “To what expedient,” he asked, “shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?” His “only answer” was to so contrive “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.” Without going into a detailed discussion, Madison “hazard[ed] a few general observations, which may place” the subject “in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.”
Madison argued that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.” To accomplish this, Madison maintained that “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Regrettably, Madison lamented, “It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. 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 controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.” The primary control on government rested with the people. Unfortunately, however, Madison believed that “experience has taught mankind the necessity of auxiliary precautions.”
Madison insisted that the Constitution’s chief auxiliary precautions were structural, not textual—not in a written list of rights or restrictions that could be easily ignored or violated. First came federalism: two levels of government, divided between the state and the federal governments, where each was able to check one another. Within both levels, power was then sufficiently separated to avoid a dangerous accumulation of powers in any one branch but not totally separated that could result in stalemated government. Hence, “in the compound republic of America, . . . a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.” The legislature, being most dominant in republics, was checked by the presidential veto, by judicial review, and by bicameralism itself.
Madison believed that “this policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” In “The Federalist” No. 51, Madison revisited a concept that he first broached during the Constitutional Convention and then repeated in “The Federalist” No. 10. “The private interest of every individual” coupled together in either secular factions or religious sects should be a sentinel protecting the rights of each other. “These inventions of prudence cannot be less requisite” than the separation of powers in the three branches of the state and federal governments.
Madison rejected the widely accepted theory famously espoused by Montesquieu that republics could only survive in small geographic areas with a homogeneous population. Instead, Madison argued just the opposite—“that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self government” with the rights of the people preserved. By enlarging the geographic area and increasing the diversity of the population throughout the country, there would be an increase in the number of factions making an oppressive combination more difficult to attain or maintain. By dividing the country into smaller, more manageable states, these state governments could operate more effectively supplying the needs of the people without oppressing them. Madison suggested that “Happily for the republican cause, the practicable sphere may be carried to a very great extent” in America “by a judicious modification and mixture of the federal principle.” Thus, the combination of separation of powers of the branches of government, the division of power between the state and federal governments, and the establishment of smaller more manageable federal states, a sufficient number of checks and balances would supply the necessary “auxiliary precautions” to protect the rights of the people and the sovereignty of the states.