Orientation and Getting Started
Early Development of the Legislative Branch and the Problem of Representation
Enumerated Powers of Congress
Implied, Expansive, and Limited Powers
The Two Congresses: Representation and Lawmaking
Separation of Powers and Interaction between the Branches
Institutional Development and Change
Congress and the American People

Checking Power

Although each branch is designed to perform its primary function, a pure separation of powers was uncommon in the Framers’ experience. In his review of state governments, Madison found “that there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” (Federalist, No. 47)  In order to guard against governmental tyranny, the Constitution must do more than separate the powers.  Madison concludes: “…a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” (Federalist, No. 48)  Some mixing or blending of the powers provides additional checks on governmental tyranny:  “But 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.” (Federalist, No. 51) 

Madison highlighted the dominance of the legislative branch as a pretext for checking legislative power. “We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments.” (Federalist, No. 49)  And, “The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” (Federalist, No. 48) Thus, as noted in Module 5 on Bicameralism, Madison concluded: “In republican government the legislative authority necessarily predominates.”  (Federalist, No. 51)

The “danger of legislative usurpations”

Why did the framers believe that the legislature was most susceptible to dominating in a republican form of government?  What was the “danger of legislative usurpations”?  How is it that “The legislative department derives a superiority in our governments?” Madison gives several reasons in Federalist, No. 48.  First, the legislature draws its strength from a democratic source: “the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength.” Second, the legislature may be “sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes.” Third, it is difficult to design constraints on the legislature’s power: “Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” Finally, the legislature has the power of the purse, “the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.”