Madison Built a Government Where Ambition Fights Ambition, and It Works

Suppose you were hired to design a government for a country full of people you did not trust. Now suppose the list of people you did not trust included yourself, your friends, your party, and the fellow you were certain would win the next election. How would you build it? You would not write a long list of good intentions and hope. You would build a machine in which every person who held power had a rival standing right next to him, watching his hands and looking for a reason to say no.

That is the Constitution, folks, and it is the least sentimental document ever written about human beings. The men who drafted it did not think power-holders were angels, and they did not think they would stay on their best behavior. They assumed the opposite. They assumed that anybody given a piece of authority would try to grab the piece next to it. So they did something clever. Instead of asking officeholders to be virtuous, they gave each branch of government a reason to be jealous of the others. Ambition would police ambition. Today I want to argue that this arrangement is the best thing conservatives have, and that we should defend it with the same energy whether the person in the Oval Office has our logo on his lapel or the other side's.

The man with the quill and the problem he was solving

James Madison did most of the intellectual work, and he put the whole idea in plain English in the Federalist Papers, which he, Alexander Hamilton and John Jay wrote in 1787 and 1788 to persuade New Yorkers to ratify the Constitution. In Federalist 47, Madison took on the charge that the new plan mixed the branches together dangerously. He quoted the French thinker Montesquieu on the separation of powers and then gave his own verdict: 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 elective, may justly be pronounced the very definition of tyranny.

Read that sentence again, because it has a sting in it. Madison did not say tyranny is a king. He said tyranny is the pile-up of powers in one set of hands, and he listed even elective hands in the pile. A government chosen by the voters can still be a tyranny if one body holds the lawmaking, the enforcing and the judging. A majority is not a cure for the problem. A majority can be the problem.

Then, in Federalist 51, he explained how to prevent it. Parchment barriers, he argued, would not do the job by themselves, because the strongest branch would eventually overrun the weaker ones on paper. The solution was to give the people who run each department "the necessary constitutional means and personal motives to resist encroachments of the others." And here is the passage everybody remembers: "Ambition must be made to counteract ambition." A few lines earlier comes the sentence that explains the whole project: if men were angels, no government would be necessary. Madison added that in framing a government to be run by men over men, the great difficulty is that you must first enable the government to control the governed, and in the next place oblige it to control itself.

Notice the order. First give the government enough strength to do its job, which the weak Articles of Confederation had not. Then make it hold itself in check. That is not an anti-government document, and it is not a pro-government document. It is a document about discipline.

Where the three powers are actually written down

Let me do what a good debater does and show you the text, because the structure is not a metaphor. It is in the first sentence of each of the first three Articles.

• Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
• Article II, Section 1: "The executive Power shall be vested in a President of the United States of America."
• Article III, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Three Articles, three Vesting Clauses, three separate containers. Two details are worth your attention. First, Article I says "herein granted," which means Congress holds only the legislative powers the document gives it, not a general grant of everything it might like to do. Second, Congress alone decides whether to have lower federal courts at all. The Supreme Court is mandatory; the district courts and courts of appeals are a creation of Congress. That is the first of many examples where one branch holds a lever over another.

The machine, part by part

Here is the argument in numbered form, because the case for the design is cumulative.

1. Each branch has a tool to resist each of the others. This is the heart of Federalist 51. A branch with no tool is a branch at the mercy of its rivals. The Constitution hands out tools generously.
2. Every one of those tools requires a second party to cooperate or gives a second party a way to block. Nothing important is done by one actor alone.
3. The tools are attached to people whose careers depend on using them. A senator who guards the Senate's prerogatives is protecting his own power. Madison counted on that self-interest, and the structure turns it to public use.
4. Therefore the system does not depend on anyone's virtue. It works with ordinary, ambitious, flawed people, which is the only kind we have ever had.

Now the tools themselves. Congress can check the President with the power of the purse. Article I, Section 9 says no money shall be drawn from the Treasury but in consequence of appropriations made by law. A President can order, speak and sign, but he cannot spend a dollar Congress has not appropriated. (Our piece on Nixon Impounded the Money, Congress Fought Back, and the 1974 Law Still Rules tells what happened when a President tried to refuse to spend what Congress had provided.) The Senate checks the President through advice and consent: under Article II, Section 2, he nominates ambassadors, judges and officers, but only with the Senate's approval, and he makes treaties only with the consent of two-thirds of the senators present.

The President checks Congress through the veto in Article I, Section 7. A bill that passes both chambers does not become law until he signs it, and if he vetoes it, it takes two-thirds of each chamber to override. That is a hard number to reach, and it is hard on purpose. Meanwhile the House has the sole power of impeachment and the Senate the sole power to try impeachments, with a two-thirds vote needed to convict. We laid out that process in How Impeachment Works, Step by Step, From the House Floor to the Senate Trial. Congress can remove a President, a judge or another civil officer, but only by getting two different bodies, elected in different ways, to agree.

The courts check both of the others by declining to enforce unconstitutional acts, a power Chief Justice John Marshall claimed in 1803 and that we cover in Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803. But notice what keeps the judges in check: the President nominates them, the Senate confirms them, Congress sets the size of the Court and the shape of the lower courts, and the House can impeach a judge who commits high crimes. When Franklin Roosevelt tried in 1937 to enlarge the Court to get the rulings he wanted, the check that stopped him came from Congress, including senators of his own party. That story is in FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No.

Inside Congress there is yet another split. Two chambers, one chosen by districts of roughly equal population every two years, and one chosen by states with two senators each, serving six-year terms. A bill must clear both. That is Madison's belt, and the executive's veto is his suspenders.

The strongest objection: "This is just gridlock"

Here is the best case against everything I just said, stated as fairly as I can state it. The critic says: your lovely diagram produces a government that cannot get anything done. Modern problems move fast. Voters elect a party with a platform and then find out that a handful of senators, a single committee chair or one judge can stop the whole thing. A system designed in the age of horses cannot keep up. And if the structure is so wonderful, why does everyone hate Congress?

That is a serious argument, and part of it is true. The system is slow. It was built to be slow. Let me give you five answers.

One, slow is a feature when the thing moving fast is the government's power over you. A law binds every American. The decision to pass one should have to clear several hurdles, the same way you would want several signatures on a contract that put your house up as collateral. The cost of a bad law is spread across a whole country for a long time. The cost of waiting a few more months is usually small.

Two, the alternative to checks is not efficiency, it is the rule of whoever happens to be in charge. Conservatives, of all people, should remember what that looks like. Every faction in American history has loved efficient government right up until the other faction took the controls. The gridlock that frustrates you under one President protects you under the next.

Three, the design does produce action when there is real agreement. The Civil Rights Act of 1964 passed. The Constitution's own amendments passed. Big, durable laws do get through, and they tend to last because they were built by coalitions that had to include people who did not start out on board. Speed is not the same as power; a law that can be repealed by the next majority is a promise written in sand.

Four, much of what people call gridlock is actually the system working on a division among the voters. When the country is split almost evenly, a government that mirrors that split will struggle to move in one direction. The structure did not create the disagreement; it reports it.

Five, there is a release valve. If the people want something the structure blocks, Article V lets them change the structure. It takes two-thirds of both chambers or a convention called by two-thirds of the states to propose an amendment, and three-fourths of the states to ratify. See Article V Explained, and the Amendment That Took More Than 200 Years for the details. The Founders did not wall off change. They set a price for it, and the price is wide agreement.

Where the machine has been bent, and why it still holds

I would be misleading you if I told you the structure runs perfectly. Presidents of both parties have stretched their power, and Congress has handed off its lawmaking duties to agencies and then complained about what the agencies did. The Court has decided cases on both sides of the line. When the Supreme Court sorted out the limits on a President's authority in the steel seizure case of 1952, Justice Robert Jackson set out a three-part test that courts still use, and you can see it applied in Justice Jackson's Three-Box Test for Presidential Power, Put to Work. The Court has also grappled with whether the President can fire the officials who run independent agencies, a fight we trace in Who Can Fire the Regulators? A Timeline From Myers to Seila Law.

These disputes prove the design rather than disprove it. Every one of them is a branch pushing on another branch and being pushed back. If the machine had stopped working, you would not see the fights; you would see one branch quietly running the place. The noise is the sound of the gears.

And here is the part that should interest conservatives in particular. The conservative tradition has always been suspicious of concentrated power, and has always preferred rules to rulers. When people on our side celebrate a strong executive who gets things done, I understand the impulse. But it is the opposite of what Madison built, and the other side will hold the same tool one day. A principle you apply only when your guy is in the chair is not a principle. It is a mood.

That cuts every direction. A conservative who wants Congress to take back lawmaking should want it whether the President is friendly or hostile. The argument for the structure is strongest precisely when it costs us something. Anyone can defend the separation of powers when it blocks the other party's agenda. The test is whether you still defend it when it blocks yours. Our companion essay, Congress Should Write the Laws, and Other Radical Ideas From Article I, makes the same case for the first branch.

What the Founders were really afraid of

Strip away the Latin and the Federalist numbers and you find a simple, very American instinct: don't give anybody too much. The colonists had lived under a king and a Parliament that claimed a right to legislate for them in all cases whatsoever. They had watched a governor dissolve assemblies and a crown appoint judges who served at its pleasure. When they wrote their own constitution, they wrote down their grievances in the form of structure. Judges would have tenure during good behavior. Legislatures would hold the purse. The executive would be one person who could be named, blamed and removed.

And they were not naive about the people either. They had seen state legislatures in the 1780s pass debtor-relief laws and paper money schemes that trampled creditors' rights, and Madison feared the "tyranny of the majority" as much as the tyranny of a king. That is why the Senate exists, why the courts exist, and why a bare 51 percent cannot rewrite the Constitution on a Tuesday. A free people needs a government strong enough to protect their rights and constrained enough that it cannot become the thing that threatens them.

So when you hear a pundit say the Constitution is "broken" because one party cannot ram its agenda through, ask the follow-up question: broken for whom, and for how long? The party that feels frustrated today will be the party that feels protected the day after the next election. This is the oldest trick in the Constitution's book, and it works because both sides keep falling for it.

The bottom line

• The separation of powers is not a technicality. It is the main device the Founders used to protect your liberty from your own government, and Federalist 47 and 51 explain it in plain English. Read them. They are short.
• Defend the structure when it costs your side, not only when it helps. A rule you drop the moment the other party holds power was never a rule.
• When you hear that gridlock proves the system is broken, answer that slow lawmaking is the price of laws that last, and that Article V gives the people a lawful way to change the design.
• Pay attention to your own House member and senators. The branch closest to you is the one Madison made most responsive to you, and it is the branch with the purse.
• Read the first sentence of Articles I, II and III the next time somebody tells you one office can do it all. Then ask which branch the Constitution actually gave the power to.