Constitutional history -- United States -- Sources; Constitutional law -- United States
To what expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer that can
be given is, that as all these exterior provisions are found to be
inadequate, the defect must be supplied, by so contriving 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 presuming to undertake a full development of
this important idea, I will hazard a few general observations, which
may perhaps place it 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. In order to lay a due foundation for that
separate and distinct exercise of the different powers of government,
which to a certain extent is admitted on all hands to be essential to
the preservation of liberty, it is evident that each department should
have a will of its own; and consequently should be so constituted that
the members of each should have as little agency as possible in the
appointment of the members of the others. Were this principle
rigorously adhered to, it would require that all the appointments for
the supreme executive, legislative, and judiciary magistracies should
be drawn from the same fountain of authority, the people, through
channels having no communication whatever with one another. Perhaps
such a plan of constructing the several departments would be less
difficult in practice than it may in contemplation appear. Some
difficulties, however, and some additional expense would attend the
execution of it. Some deviations, therefore, from the principle must be
admitted. In the constitution of the judiciary department in
particular, it might be inexpedient to insist rigorously on the
principle: first, because peculiar qualifications being essential in
the members, the primary consideration ought to be to select that mode
of choice which best secures these qualifications; secondly, because
the permanent tenure by which the appointments are held in that
department, must soon destroy all sense of dependence on the authority
conferring them. It is equally evident, that the members of each
department should be as little dependent as possible on those of the
others, for the emoluments annexed to their offices. Were the executive
magistrate, or the judges, not independent of the legislature in this
particular, their independence in every other would be merely nominal.
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. The provision
for defense must in this, as in all other cases, be made commensurate
to the danger of attack.
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