Separation of Powers
CHAPTER 10|Document 21
James Madison, House of Representatives10 Mar. 1796Annals 5:493
The Constitution of the United States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.
He came next to the fifth construction, which left with the President and Senate the power of making Treaties, but required at the same time the Legislative sanction and co operation, in those cases where the Constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the Constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and no where expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.
The Founders' Constitution
Volume 1, Chapter 10, Document 21
The University of Chicago Press
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.
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