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where the legislative and executive powers are united in the same person, or body of magistrates,’ or ‘if the power of judging be not separated from the legislative and executive powers,’ he did not mean that these departments ought to have no partial agency in, or no control over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.… If we look into the constitutions of the several states we find that notwithstanding the emphatical, and in some instance, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.”12 Madison obviously rejected plenary power in a centralized government, and he believed that the Constitution averted it. However, he also argued that the delineation among the branches cannot be absolute.

FEDERALISM

Despite Madison’s assurances, during the state ratification debates opponents of the Constitution (the Anti-Federalists) were not satisfied that, among other things, the states were protected from an overly powerful federal government. They argued that the conditions for despotism had not been sufficiently ameliorated by the enumeration of powers in distinct federal branches. Moreover, given the territorial expanse and diversity of the country, they insisted that the federal government would grow into a national government and suppress the states, making them impotent. Proponents of the Constitution (the Federalists) countered that the size and diversity of the country would ensure that the federal government was less able to empower itself beyond the authority granted it by the Constitution, and that state authority was, in fact, respected and protected. Thus, both sides insisted they were preserving state sovereignty, although they disagreed on the methods. There was consensus against an all-powerful or even overly powerful central government. Montesquieu was invoked repeatedly in the debate by the Federalists and Anti-Federalists.

In an important speech to the Pennsylvania Convention in support of the Constitution’s ratification, James Wilson, among the most influential delegates to the Constitutional Convention, argued that the federal government would not become overbearing. He specifically addressed Montesquieu’s caution.

“A very important difficulty arose from comparing the extent of the country to be governed with the kind of government which it would be proper to establish in it. It has been an opinion, countenanced by high authority [Montesquieu], ‘that the natural property of small states is to be governed as a republic; of middling ones, to be subject to a monarch; and of large empires, to be swayed by a despotic prince; and that the consequence is that, in order to preserve the principles of the established government, the state must be supported in the extent it has acquired; and that the spirit of the state will alter in proportion as it extends or contracts its limits.’ This opinion seems to be supported, rather than contradicted, by the history of the governments of the Old World. Here then the difficulty appeared in full view.… The idea of a confederate republic presented itself. This kind of constitution has been thought to have [as Montesquieu explained] ‘all the internal advantages of a republican, together with the external force of a monarchical government.’ Its description is, ‘a convention, by which several states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further association.’ The expanding quality of such a government is peculiarly fitted for the United States, the greatest part of whose territory is yet uncultivated.