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Source: Federalist #48 — ‘These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other’ by James Madison

In February 1788, Madison warned that written constitutional limits—mere ‘parchment barriers’—would prove insufficient to restrain ambitious legislators. Here, he and Hamilton speculate on a future where such barriers might become not merely weak, but ceremonial, and Jefferson offers a characteristically mordant observation.

*   *   *

New York, February 3, 1788

Dear Hamilton,

I have just dispatched to the printers my latest contribution to our common enterprise, and find myself troubled by a speculation that would not leave me even as the ink dried upon the page.

We propose, as you know, to divide power among branches and to mark their boundaries in the Constitution itself. But I have argued—and I believe rightly—that these ‘parchment barriers’ offer no certain defense against the encroaching spirit that animates all power. The legislature, possessing the purse and commanding the confidence of the multitude, will always find means to draw authority unto itself.

Yet tonight a darker thought visits me. What if posterity should learn to honor the parchment in ceremony while circumventing it in practice? What if the very words we inscribe should become ritual incantations, recited with solemnity and violated with regularity? The form preserved, the substance abandoned—like a church whose congregants speak the creed but have ceased to believe it.

I confess this prospect troubles me more than open usurpation, for tyranny announced is tyranny that may be resisted.

Your servant in some anxiety,

J. Madison

* * *

New York, February 5, 1788

My Dear Madison,

Your speculation, as always, cuts nearer the bone than comfort permits. But permit me to extend it further, for you have not yet imagined the full ingenuity of which ambitious men are capable.

Consider: we propose that laws must pass through prescribed channels and receive the assent of designated officers. But what if future statesmen should discover means to make law without making law? An executive who issues commands in the form of ‘guidance’ that binds as firmly as statute? A legislature that delegates its authority to bureaus and commissions, then affects surprise at how that authority is exercised? Courts that divine new principles from old words, or old principles from no words at all?

The Constitution would stand unviolated, technically speaking. Every formal requirement observed. And yet the citizens would wake one morning to discover themselves governed by instruments the parchment never anticipated and cannot control.

Power, my friend, is like water. Dam it in one channel, it seeks another. Our barriers may prove not so much weak as irrelevant.

Ever your agitated correspondent, A. Hamilton

* * *

Paris, March 20, 1788

Dear Madison,

Hamilton’s letter, which you forwarded across the water, has occupied my thoughts during several long walks through the gardens of the Tuileries—a fitting venue for meditation upon the decay of republics.

You will recall that I warned Virginia’s convention of ‘elective despotism’—the tyranny of legislators chosen by the people but restrained by nothing. Now your correspondent imagines a refinement I had not considered: despotism disguised even from the despots themselves. Men governing through mechanisms so indirect, so insulated from the act of governing, that they might sincerely believe themselves servants of the Constitution even as they render it a museum piece.

Perhaps future generations shall develop entire vocabularies of evasion. They will speak of ‘interpretation’ when they mean invention. They will invoke ‘necessity’ as the license for every expedient. And they will teach their children that the words on the parchment mean whatever present convenience requires them to mean.

The church that recites a creed it no longer believes at least knows it is lying.

Your friend amid the ruins of older experiments,

Th. Jefferson

* * *

New York, May 12, 1788

Dear Jefferson,

Your observation cuts to the heart of it. The honest tyrant at least pays liberty the compliment of openly despising it. But what of the tyrant who persuades himself he is liberty’s champion even as he governs by expedients the Constitution nowhere authorizes?

I begin to suspect that parchment barriers fail not because men ignore them, but because men interpret them. And interpretation, once loosed from the plain meaning of words, knows no bounds save ingenuity.

Still, we must build as well as we can with the materials at hand. Perhaps the greatest service our Constitution can render is not to prevent tyranny—for what instrument of man ever did that—but to make tyranny visible. To force it, at least, to climb over walls rather than walk through doors. The higher we build the barriers, the more clearly posterity will see when they are surmounted.

Though I confess I should prefer they not be surmounted at all.

Yours in troubled hope, J. Madison

* * * *

If they only knew…that their ‘parchment barriers’ would become sacred texts recited by officials of every branch—even as executive orders, regulatory guidance, creative interpretation, and institutional workarounds made the formal limits a kind of constitutional theater. The founders feared the barriers would be weak. They did not imagine they would become ceremonial.

Questions for Discussion

Do you see examples of ‘parchment barriers’ being honored in form while circumvented in practice? What institutions, if any, still operate within their original constitutional boundaries? Share your thoughts in the comments—and if this made you think, please click ‘Like’ to help it reach more readers.