Civics In A Year
What do you really know about American government, the Constitution, and your rights as a citizen?
Civics in a Year is a fast-paced podcast series that delivers essential civic knowledge in just 10 minutes per episode. Over the course of a year, we’ll explore 250 key questions—from the founding documents and branches of government to civil liberties, elections, and public participation.
Rooted in the Civic Literacy Curriculum from the Center for American Civics at Arizona State University, this series is a collaborative project supported by the School of Civic and Economic Thought and Leadership. Each episode is designed to spark curiosity, strengthen constitutional understanding, and encourage active citizenship.
Whether you're a student, educator, or lifelong learner, Civics in a Year will guide you through the building blocks of American democracy—one question at a time.
Civics In A Year
Separation of Powers: Madison's Blueprint for American Governance
We explore Federalist Papers 47 and 48 with Dr. Sean Beinberg, examining Madison's sophisticated understanding of separation of powers and the subtle distinction between separated powers and checks and balances.
• Dr. Beienberg identifies these papers as among the most important Federalist writings
• Madison responds to critics who claimed the Constitution had poor separation of powers
• Tyranny defined as concentration of powers, regardless of whether in one, few, or many hands
• Madison argues tyranny can exist even in a popularly elected democracy if powers aren't separated
• Separation requires giving each branch control over others, not complete division
• "Parchment barriers" aren't enough - branches need actual mechanisms to check each other
• Madison's fear of legislative power relates specifically to state constitutions after the Revolution
• Federalist 48 also provides a framework for when to fear executive overreach
• Contemporary politics may actually match Madison's conditions for dangerous executive power
Check Out the Civic Literacy Curriculum!
School of Civic and Economic Thought and Leadership
Welcome back everyone. We have Dr Sean Beinberg back with us and we're looking at Federalist papers that you know. Maybe, if you're looking through a high school curriculum, maybe aren't as well known, but they're still very important. So the ones we're looking at today have to deal with separation of power. So, dr Beinberg, today we're looking at Federalist 47 and 48. Can you tell us what those are about?
Speaker 2:Sure, I think these are two of the most important Federalist papers. I would say maybe two of certainly the top 10, maybe the top five, along with the Federalist 70, which sort of lays out the logic of executive power. I think they give you the best understanding of separation of powers. 47 and 48 are concentrating more on the logic of separation of powers and what it means in the American political system and why the Constitution is desirable. It's worth emphasizing that in these Federalist papers Madison actually points out and says a lot of people are complaining that this system has a poor separation of powers and he says if they were correct about that then everybody should oppose this Constitution. Because he says a proper functioning were correct about that, then everybody should oppose this constitution. Because he says a proper functioning of a separation of powers is so essential to good governance. But he goes on to say but it turns out they're wrong that in fact the separation of powers designed in these two Federalist Papers is in fact really sophisticated and thoughtful and reflects to use the modern consultant's term best practices as well as the logic of Montesquieu. It's hard to overstate how important Montesquieu is politically to these folks at the time. The Bible is the text that they cite the most politically. Montesquieu is second. So Montesquieu is basically their political Bible.
Speaker 2:And so Madison starts by agreeing with the critics and Montesquieu when he says the concentration of the different powers the legislative, the executive and the judicial in a single. He says a single hand. But that's an important sort of asterisk. There would be the very definition of tyranny. But then what's interesting is he walks through and says okay, what would it mean to be? What would this despotism, what would this tyranny look like? And he says actually quite strikingly, that it can be in one hand or a few hands, or many hands, right? So the sort of classic example of a tyranny we think of is sort of a military dictator with a gun pointing. But he says no, it could be actually a small group like an oligarchy. But strikingly he also says it could be many hands. An entire large government could be a tyranny. And then he says and the way that it is chosen also in a sense is agnostic to tyranny it could be hereditary, it could have seized power by force, but it also could have been elected.
Speaker 2:So if you think through the logic here, madison says a tyranny can be both many hands and elected, which is to say that a popularly elected republic or democracy, according to Madison, can itself still be a tyranny. It's not about the number, necessarily, of people who are invested in governing a country, about how they got it, he says. Actually, the more dangerous way to think of tyranny is if they can do multiple things at once, that is to say they don't have checks on their authority or power is not decentralized in a meaningful way. And so he says the core of this we think of is the promotion of liberty and the prevention of tyranny. And so what he does in Federalist 47 and 48 is he walks through and says basically, we all agree, separation of powers is good. And then he says okay, well, let's look at Montesquieu.
Speaker 2:Montesquieu doesn't say that separation of powers needs to be completely divided in the sense that no branch has an influence over the other. That's the critique that's getting raised against the Constitution is that there's a little bit of mixing of powers. And I'll spare the listeners. If you want to go back and read the text itself, it's quite good, but his sentences are kind of long and be hard to sort of read here. But he effectively says Montesquieu agrees with me on this, and he does a reading of Montesquieu. He says Montesquieu agrees with me on this.
Speaker 2:And he does a reading of Montesquieu. He says everybody recognizes that Montesquieu worshipped England as the model of vision of a separation of powers. And he points to the state constitutions and he says effectively, in all of them we see a mixing of the separation of powers, of the powers in the sense that the legislature has a little bit of executive power, so the Senate has to consent to treaties. Right, that is part of the executive power. On the foreign policy side, conversely, the executive has a little bit of legislative power, it has a veto. And he walks through another since examples of how that plays out. But he says look, we see this in england, we see this in the state constitutions. He says some of the state constitutions have this really, really robust language saying separation of power shall be purely and perfectly and always observed.
Speaker 2:And then he goes through and says but actually, if you look at the way they operate, it doesn't work that way. He says the better ones are the ones like the massachusetts constitution, and remember that the founders view the Massachusetts Constitution, which is mostly John Adams' handiwork, as the model that the US Constitution is. The Pennsylvania. One is the one they don't like and Madison is explicitly critical of that in these Federalist Papers that it has weak, really weak, separation of powers and therefore is effectively tyrannical. So he says look, even in the examples, we always have mixing of powers and therefore is effectively tyrannical. So he says look, even in the examples, we always have mixing of powers. And he says OK, well, why is that a good thing? And this is where he spells out a really subtle argument.
Speaker 2:In popular conversation we think of the term separation of powers and checks and balances as interchangeable, but they're not. Separation of powers under Montesquieu, under Madison, means no branch can do basically a second branch's job. The legislature can't execute the law, the executive can't adjudicate the law, so nobody gets to do two things. So that's separation of powers. Checks and balances is the piece where there's a little bit of blending, where each of them has a little bit of a veto point or a block of the other ones. And Madison says and this is actually a really great way to make sure that the separation of powers is protected, because otherwise one branch could just start doing another branch's job, job.
Speaker 2:And he said this is where the famous line about parchment barriers comes from, which is something that he actually pulls from, quoting by name Thomas Jefferson and the notes on the state of Virginia, where Jefferson says look, if we look at the Virginia Constitution and some other ones in history, there haven't been barriers to stop the branches from interfering with each other. You can write on a list this branch shouldn't do this. But unless you give them an actual operational tool to block what another branch is doing, they will inevitably take power from the others. And so, as my colleague, my former colleague Zach German, used to say, the real paradox from Madison is Federalist 48, is unless the departments be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires can never in practice be keep them separate.
Speaker 2:You must give the executive the ability to block legislation, otherwise the legislature could pass laws that would screw with the executive's ability to enforce the law. You must give the executive a part. You know the pardoning power is quintessentially executive, but in a way it borders on dealing with sort of cases, and you have to basically give them a little bit of a control of each other, and so you give them each a veto to block things the other one does, but none of them get to affirmatively do things the other one does. That's the paradox and that's the subtle distinction between the separation of powers and checks and balances. So 47 and 48 are laying out that part.
Speaker 1:So if I'm teaching this to a class, do you think that the best way to do this would be to pair both of those Federalist Papers together, as opposed to just teaching one or the other?
Speaker 2:Yeah, they are so deeply linked to one another, I mean I think they're effectively inextricable. What you could do what I do in my introductory classes is I have the students skip. This wounds me as a state constitution scholar, but I just have them skip. When Madison goes into the real heavy detail of the operations of the state constitutions and if you do that, they're only like two or three pages each they're pretty short if you take out the sort of exhaustive detail. Now, it's good that Madison does that, because he's writing to an audience that keeps saying we love our states, we love our state constitutions, and so you can see him saying aha, checkmate, like there's actually more robust separation of powers in this than the state constitutions that you're that you're fawning over here. So, yeah, I think that that's. I think that the two of them are effectively inseparable.
Speaker 2:I do think there's one other thing that's worth adding here, because there's a line from Federalist 48, while we're talking about the context of state constitutions, that often gets misinterpreted the context of state constitutions, that often gets misinterpreted. So Madison has the very famous line where he says the legislature is basically everywhere a vortex. It's always the one that sucks power to itself, and so this has often been treated as Madison is scared of legislative power. He's okay with executive power. But Madison is talking about a specific moment in time when, in the wake of the American Revolution remember the legislatures had been elected by the people. That's what they liked, that was what they wanted to have most political power. The governors were generally royally appointed and they didn't like the governors. So the earliest state constitutions make the governors extremely weak. As a result, the Pennsylvania constitution effectively dissolves a governor. There's this really, really weak nominal figure and Madison says everywhere that they're looking around, that we're looking around, we can see right now the legislature is taking power because that's how they built the constitutions as an overreaction or not necessarily an overreaction, but a reaction to the American Revolution.
Speaker 2:But what he says is let's be cautious though, and not overreact the other way and assume that the legislature will always be doing right that. In fact, going back to Federalist 47 and Montesquieu, an elected multiple government, multiple person government, can still be tyrannical. But he does go through in Federalist 48, and this is something people often skip over. But he says there are scenarios when, in fact, you would be concerned about executive power. He says executive power quintessentially like the power to execute the law. That's pretty limited.
Speaker 2:But he says if you had a scenario where the executive isn't limited to that, where the executive has a mandate of popular support behind it, which again which he thinks the legislators will have, and he says and if your legislature is actually aggressive about power, those are the scenarios where your executive will be weak. But if your executive is doing non-executive things that can claim a popular mandate and if you have a weak legislature, by Madison's rubric you actually do need to fear executive power, right. And so I think one of the things that we certainly have seen in the last two-thirds of a century is the executive is doing more lawmaking, is claiming more and more of a mandate. This is from since Woodrow Wilson, particularly due to Roosevelt and a legislature that gives power away, right. So I just think it's worth pausing and saying.
Speaker 2:Madison is actually really subtle and really smart here in Federalist 48, in a way that I think is often ignored, where he said he gives you a rubric of when you should be afraid of executive power, and I think it's fair to say that most of those metrics actually look more like contemporary politics than the universe he's inhabiting, which is one where the governors are weak and disempowered because everybody hates them, because they have the strong memory of the American Revolution, and so that's not necessarily the same historical moment we're under. So this is again one of the places where the Federalist Papers are actually really keen in their understanding of institutional dynamics and the nature of politics. But they're describing a historical universe that exists then, but they're giving you the logic to think through politics more broadly have a podcast on Montesquieu that I will link in the show notes, but thank you for your expertise.
Speaker 1:And Federalist 47 and 48 and an extra shout out to Dr Zach German.
