A separation of powers is a defining structural feature of the federal government established by the United States Constitution, yet an explicit statement of the concept exists nowhere in the document. If James Madison had had his way there indeed would have been a clause pronouncing the Legislative, Executive, and Judicial branches to be distinct bodies operating within their own spheres of governmental power and unable to infringe upon one another’s. This statement took the shape of an amendment proposed by Madison as part of his Bill of Rights:
XVI. The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial, nor the Executive the powers vest in the Legislative or Judicial; nor the Judicial the powers vest in the Legislative or Executive.[1]
On June 8, 1789 James Madison presented this amendment along with sixteen others to the House of Representatives whose members would eventually vote it through without alteration. Exactly three months later, on September 8, the clause was struck down in the Senate.[2] The exclusion of this clause can be explained as the product of four factors working against it at the time of its proposal: the amendment’s own redundancy, the decision to append amendments rather than edit the body of the Constitution, the amendment’s focus on structure rather than rights, and its attachment to arguments against the diverse powers of the Senate.
Before we can seek to understand why Madison’s definitive assertion of the separation of powers was not included, we must first explore the purpose of the amendment and the reasons why one might expect it to be included. James Madison demonstrated unyielding conviction on the matter of the separation of powers. He believed that dividing powers among distinct departments in the government, namely the Legislative, Executive, and Judicial branches, was the only way to ensure that no entity would accumulate enough power to rule in tyranny.[3] Madison did not oppose the partial intersection of certain branches’ authority such as the chief executive’s capacity to appoint federal judges. He instead was concerned with the possibility of one department superseding another and exercising the latter’s powers as its own.[4] Madison repeatedly referred to this concept of the government having separate and distinct arms as a “political maxim,” or in his proposal of the amendment as a “dogmatic maxim.”[5] Madison supported the implicit structural apparatus created in the text of the Constitution which gave each branch unique powers while giving no single branch “an overruling influence on the others.”[6]
Madison’s dedication to the separation of powers originated from two main sources. First, Madison felt disdain for the British Constitution which empowered a prime minister to act simultaneously as the chief executive and as a member of Parliament, while also having authority over judicial appointments. He reflected on the writings of Montesquieu, denouncing this facet of the British government, and claimed that Montesquieu’s doctrine of the separation of powers between the executive and the legislature formed the foundation of a just government.[7] Second, largely due to the lasting British and colonial influences, many state governments including New Jersey, Pennsylvania, and Delaware at the time of the founding allowed for a mixing of powers that Madison deemed to be dangerous.[8] On the other hand, he admired state systems such as his home state of Virginia’s which declared “that the legislative, executive, and judiciary departments shall be separate and distinct.”[9] The examples set by Virginia and other states such as Maryland, North Carolina, and Georgia which explicitly stated a separation of powers in their constitutions were likely motivating forces behind Madison’s effort to insert such a clause into the United States Constitution.[10]
Madison proved to be one of many demanding that the initial amendments to the Constitution should include a reaffirmation of the separation of powers. Of the nine states that proposed amendments alongside their ratifications of the Constitution from 1787 to 1790, four (Pennsylvania, Virginia, Rhode Island, North Carolina) included an amendment explicitly stating that the three branches of the federal government must operate and exercise their individual powers separately and distinctly.[11] A similar amendment was debated in New York and supported by a minority of delegates.[12] These state conventions held the concept of the separation of powers in high regard and believed its inclusion in the Constitution as more than an implicit structural framework to be a necessity.
Madison presented the seventeen amendments composing his Bill of Rights to the House of Representatives on June 8, 1789.[13] Over the course of the next two months he received much opposition on many of the amendments that he had proposed, with some of his fellow representatives even questioning whether the Constitution should be changed at all.[14] Madison persevered and on August 24 his amendments made it through the gauntlet with all seventeen receiving the two-thirds vote needed to be passed along to the Senate. Of all his amendments, the 16th was arguably met with the least resistance, being carried without altering a single word or triggering extensive debate.[15] For all intents and purposes, it seemed that the clause was in the clear and would sail through the Senate as it had the House, reaching the state conventions for its ultimate approval. Why then, did the Senate decide to remove the amendment from the list and end its journey to Constitutional incorporation? Since the debates of the first Senate were kept private, this exclusion must be explained through a careful synthesis of political arguments and conversations going on elsewhere at the time. There are four explanations for the defeat of Madison’s amendment, each working in tandem to oppose it.
The first, and most simple reason that this explicit statement of the separation of powers was not added to the Constitution was that it was viewed by some as redundant and unnecessary. The Constitution as it was originally written had already put in place a system with powers that were neatly and clearly divided among the Legislative, Executive, and Judicial branches. There may not have been an explicit definition of the “maxim” that Madison held so dear, but the separation of powers clearly provided the Constitution with its underlying framework as made visible by two features in particular. First, the document’s division into articles made it clear that the Legislative, Executive, and Judicial branches were distinct entities, with no single one being subordinate or superior to another. Second, the careful enumeration of the powers delegated to each of the three branches made it impossible for one to take on or control the powers of another. This was the argument expressed by Roger Sherman of Connecticut when he stated that the amendment was “altogether unnecessary, inasmuch as the constitution assigned the business of each branch of the Government to a separate department.”[16]
The second explanation for this amendment’s failure is that it was not written to be appended, but rather to be inserted. When Madison originally drafted his Bill of Rights it had not yet been decided how amendments would become part of the Constitution. As a result, Madison wrote his proposal with the assumption that any alterations or additions that he suggested would be directly fit into the existing text. Under this scheme, Madison’s separation of powers clause carried with it two significant differences. First, the clause would appear directly preceding, and as part of the same section as, the sentence that would eventually become the 10th Amendment. Second, these two clauses would not be added into an existing article, instead they would become the new Article VII with the article previously holding that position becoming Article VIII.[17] This new Article VII would have explicitly defined the two core structural frameworks of the United States government: the separation of powers and a system of federalism. However, the decision to have constitutional amendments trail the original text made Madison’s 16th amendment seem much less consequential. Rather than presenting a fundamental dimension of the government, if appended to the text this amendment would reiterate what readers of the Constitution had already understood from reading the articles and enumerated powers within them. Without the added weight of being its own article and accompanying an assertion of states’ rights, this amendment was likely deemed superfluous by the Senate and removed as a result.
A third reason that Madison’s 16th amendment did not make the cut is its focus on the structure of the government. Ten out of the twelve amendments sent to the state conventions for ratification revolved around rights of the states or of the people.[18] Of these twelve, the ten that were successfully ratified to form the Bill of Rights were all aimed at preserving and protecting rights from potential overreach of the federal government. The people were demanding rights, not the “political maxim” that Madison had consolidated into this amendment.[19] Joseph Jones, who would later serve as a member of the Virginia ratifying convention, expressed this sentiment in October of 1787 in a letter to James Madison in which he argued for the need of a “declaration of rights” attached to the Constitution.[20] Jones would add to this argument in a later letter when he claimed that the proposed amendments relating to the rights of the people were “generally acceptable and of course more likely to obtain the assent of Congress than would any proposition tending to separate the powers.”[21] These sentiments were shared by members of Congress such as James Jackson, a representative from Georgia, who opposed amendments that would alter the structure of the government on the grounds that the newly created federal government had not yet had a chance to test its own efficacy.[22] Members of the Senate likely recognized this disposition toward the protection of rights over the preservation of good government and decided to vote against Madison’s amendment before the state conventions had the chance to.
A fourth and final explanation for the Senate’s failure to produce an amendment outlining the separation of powers can be drawn from discussions and criticisms of the Senate itself. In a letter to Cotton Tufts, John Adams wrote, “You are pleased to ask my poor opinion of the new Constitution, and I have no hesitation to give it. I am much mortified at the mixture of Legislative and Executive Powers in the Senate, and wish for some other amendments.”[23] Similar arguments about this “mixture” of powers within the Senate were made by Melancton Smith, James Monroe, “Brutus,” and James Madison himself.[24] These predominantly Antifederalist political figures were concerned with the diverse powers of the Senate which included legislative authority over creating laws, the executive capacity to confirm appointments and ratify treaties, and the judicial role of the court of impeachment. Accompanying their concerns about the Senate accumulating and abusing power were demands for a clearer separation of powers written directly into the Constitution. Seeing that this critique had often accompanied the call for an amendment like Madison’s 16th, the Senate’s negative vote may have been motivated by self-preservation. Members of the Senate may have been concerned that the passage of such an amendment would pave the way for others that would specifically target the powers of the upper house.
While it is impossible to know exactly what debate took place in the Senate over Madison’s proposed amendments, an in-depth analysis of the political discourse of the time gives a clear image of the many reasons why the Senate decided to reject an amendment explicitly stating the central structural feature of the separation of powers. Would this amendment have significantly altered interpretations of the Constitution had it been included? Alternatively, would it have merely stated the obvious and had no implications for the functioning of the United States government? Should a similar amendment be added now to help resolve the gray areas that result from intersecting powers between the three branches? These are just a few of the many questions that must be answered to fully understand both the causes and potential lasting effects of the omission. For now, it can be concluded that despite there being several reasons that Madison’s 16th amendment was not incorporated into the Constitution, his “maxim” has lived on through the implicit framework of the separation of powers that permeates the rest of the document.
[1]House Journal of the First Session of the First Congress (1789), catalog.archives.gov/id/5743060.
[2]“House Resolution and Articles of Amendments (August 24, 1789),” www.consource.org/document/house-resolution-and-articles-of-amendments-1789-8-24/. In Annals of Congress, House of Representatives, 1st Congress, 1st Session, 440, 1789, memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228. “Journal of the Senate of the United States of America, 1789-1793,” September 8, 1789, memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(sj001132)):.
[3]“The Avalon Project: Federalist No 47,” avalon.law.yale.edu/18th_century/fed47.asp.
[4]“The Avalon Project: Federalist No 48,” avalon.law.yale.edu/18th_century/fed48.asp.
[5]In Annals of Congress, House of Representatives, 1st Congress, 1st Session, 454, 1789, memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228. “The Avalon Project: Federalist No 47,” avalon.law.yale.edu/18th_century/fed47.asp. “The Avalon Project: Federalist No 48,” avalon.law.yale.edu/18th_century/fed48.asp.
[6]“The Avalon Project: Federalist No 48,” avalon.law.yale.edu/18th_century/fed48.asp.
[7]“The Avalon Project: Federalist No 47,” avalon.law.yale.edu/18th_century/fed47.asp.
[9]Constitution of Virginia (1776), www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=3883.
[10]“The Avalon Project: Federalist No 47,” avalon.law.yale.edu/18th_century/fed47.asp.
[11]North Carolina Convention Amendments (1788), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-03-18-02-0087. Rhode Island Convention: Bill of Rights and Proposed Amendments (1790). rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-26-02-0002-0010. The Dissent of the Minority of the Pennsylvania Convention (1787), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-02-02-0003-0003. Virginia Convention Amendments (1788), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-03-18-02-0056.
[12]MelanctionSmith, New York Convention Debates and Proceedings (1788), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-23-02-0001-0004-0002.
[13]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 440, 1789,memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[14]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 441–68, 1789, memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[15]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 789–90, 1789, memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[16]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 789, 1789,memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[17]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 453, 1789,memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[18]Amendments to the Constitution Proposed by U.S. Congress (1789), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-26-03-0001.
[19]“The Avalon Project: Federalist No 47,” avalon.law.yale.edu/18th_century/fed47.asp.
[20]Joseph Jones to James Madison, October 29, 1787,rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/JSMN-01-10-02-0159.
[21]Jones to Madison,” June 24, 1789, rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/JSMN-01-12-02-0160.
[22]Annals of Congress, House of Representatives, 1st Congress, 1st Session, 443, 1789,memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228.
[23]John Adams to Cotton Tufts, January 23, 1788, rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-05-02-0002-0187.
[24]“Brutus XVI.” New York Journal, April 10, 1788, rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-20-02-0004-0119. Madison to Edmund Pendleton, June 21, 1789, rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/JSMN-01-12-02-0152. James Monroe, Some Observations on the Constitution, 1788, rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-09-02-0003-0076. Smith, New York Convention Debates and Proceedings (1788), rotunda-upress-virginia-edu.yale.idm.oclc.org/founders/RNCN-02-23-02-0001-0004-0002.
7 Comments
Enjoyed this analysis. The shift from rights in the first nine amendments to powers in the 10th has always been a bit of a puzzle, long raising the question of whether the amendment is an outlier in the Bill of Rights. But once the decision was made to append the new provisions to the Constitution and to not insert them within the original text somewhere, as you point out, the language of the 10th addressing the limits of federal powers makes sense, especially since it fits the overall purpose of the rest of the amendments: to limit “overbearing” federal powers. But it should be noted that other amendments proposed by Madison had little to do with individual rights or structural powers, and also did not make the cut, e.g., the compensation of representatives and senators, which, in this case, was eventually ratified many years later as the 27th and last amendment. It seems to me that your second and third explanations of why the proposed 16th amendment was struck best explain the reason for exclusion.
It’s too bad this amendment didn’t make it through. As it currently sits we have an Executive branch that runs a quasi-judicial system via administrative courts and usurps the legislative power via executive orders. We also have a judicial branch that legislates from the bench by reading context into Laws that isn’t there in the text and we have a legislative branch that tries to micromanage the executive branch.
Well said, IMO. And let’s not forget the 4th branch of our gov’t [the unaccountable and onerous bureaucratic state] whose creation may never have happened if Madison’s prescient 16th had been ratified.
Well done, young man. Excellent scholarship here and I would never have known of it except for JAR.
Agreed. Very sad that this amendment didn’t pass. Our country – and our Constitution – would be much improved and strong if it had.
An excellent piece of work, splendidly written. I only add that Madison’s “maxim” was a leaner version of John Adams’s language in the Massachusetts Constitution of 1780:
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
This language resulted from Adams’s experience before the Revolution, when people like Thomas Hutchinson virtually collected high offices in various branches of government.
Interesting article, and just a brief comment. In paragraph four, the author describes Madison, in Federalist 47, as expressing contempt (disdain) and denouncing the British Constitution to the extent that it empowered the Prime Minister to act as both the Chief Executive and simultaneously as an MP. Madison, however, was referring to the King-in-Parliament, not the Prime Minister as an MP, and he neither expressed disdain nor denounced this aspect of the British Constitution. In fact, the very opposite is the case; virtually all of Federalist 47 was a vigorous defense of the doctrine of blending constitutional powers.
Fundamental to this article and discussion is the question of whether the Constitution is a fixed instrument, clearly defining the boundaries of each branch of the federal government in terms of what each can and can not do. But the Constitution has never been a fixed document in such matters. Whether the founders intended it to be or not is certainly debatable (the “original intent” issue), but the Constitution (and Bill of Rights) has changed and continues to change ever since its ratification, in many ways just to adapt to changing times.
As Mr. Otersen pointed out, Madison understood that certain powers among the three branches of the federal government overlapped. Each branch, legislative, executive and judicial has some “quasi” powers of the other branches. And over the years, these have grown. Congress, for example, has “delegated” many functional powers to the executive branch, so much so that by the 1970s Congress became alarmed at what it perceived as the excesses and abuses of executive powers with respect to war making.
So Congress passed the so-called “legislative veto” in the War Powers Resolution at the end of the Vietnam War (after a fixed period of time, Congress can end the president’s deployment of troops abroad after a vote). SCOTUS has never really weighed in on whether that attempt by Congress back then to limit executive war making is constitutional (though in several other, non-war related cases it held such a veto to be unconstitutional, ruling that under the Constitution only the president has veto power). But because both the Congress and the President were originally given wars powers in the Constitution (blended powers), the former to declare war, which hasn’t been done since WWII, notwithstanding the many “wars” that have followed since, and the presidential power to command the military when waging war, the issue remains constitutionally unresolved. Today, presidents, knowing that, take actions that can lead to war without congressional approval, without worrying about Congress doing much about it. But the practice is actually very old, dating back to at least the Jefferson administration.
It might be nice to think that the 16th amendment, if passed back then, might have cleared up these pesky conflicts among the branches of government. But something tells me probably not.