Juvenal’s question of “Who guards the guardians” is a very difficult design question that appears in many social domains and at many levels.

In the economic realm, supervisors and bosses and CEOs are guardians an important piece of the social structure. The free market only works well at all because of a set of rules that block the most obvious ways to get rich: stealing, lying, and extortion by threats of violence. And the free market in the 21st century will only work really well if we go through the design process of figuring out all the other ways that people—especially those with a great deal of economic reach—can only get rich by doing something commensurately valuable for other people, after netting out any harm done. (An adequate design process would probably come to a different set of rules for different sectors of the economy; possible ways to get rich without doing something commensurately valuable for other people differ by sector.)

In the political economy realm, the difficult design problem, essential for economic growth, is to create a government that can and will stop people from stealing, lying, extorting by threats of violence—or getting rich by some other means that does not serve other people—without that government itself being so strong and wanton that it steals, lies, intimidates and actively perpetrates injustice itself.

Democracy with reasonably free and fair elections (and reasonably peaceful transfers of power) cuts off the worst bad governments in the tail. But even genuine democracy is not enough to prevent moderately serious governmental malfeasance. The framers of the US Constitution had these problems in mind.

The checks and balances between different components of government was the best solution they could come up with. The first half of the Federalist Papers #51, written by either Alexander Hamilton or James Madison, details some of the checks and balances they hoped would help ward off bad outcomes. That the author of the Federalist Papers #51 had the difficulty of the design problem in view is clear from these passage:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Here are some of the key ideas in the first half of the Federalist Papers #51 (bullets added to separate passages):

• … 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.

• 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.

• … the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.

• Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

• It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

• This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

• … the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

• In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

• … the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

• In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

There is genius in the design the US Constitution. And the problem of “Who guards the guardians?” still causes trouble. As always, things are bad, but they could be much, much worse. That they are not worse owes partly to the structure of the US Constitution, but even more importantly to the virtue of many in a wide variety of positions who uphold it.

Below is the full text of the first half of the Federalist Papers #51.

FEDERALIST NO. 51

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

From the New York Packet
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

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. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Links to my other posts on The Federalist Papers so far:

• The Federalist Papers #1: Alexander Hamilton's Plea for Reasoned Debate

• The Federalist Papers #2 A: John Jay on the Idea of America

• The Federalist Papers #2 B: You Trusted the Continental Congress; Trust the Constitutional Convention

• The Federalist Papers #3: United, the 13 States are Less Likely to Stumble into War

• The Federalist Papers #4 A: The States Must Be Prepared to Defend against Aggression by Other Nations

• The Federalist Papers #4 B: National Defense Will Be Stronger if the States are United

• The Federalist Papers #5: Unless United, the States Will Be at Each Others' Throats

• The Federalist Papers #6 A: Alexander Hamilton on the Many Human Motives for War

• The Federalist Papers #6 B: Commercial Republics Also Start Wars with Their Neighbors—Alexander Hamilton

• The Federalist Papers #7 A: Divided, the States Would Fall into Territorial Disputes Likely to Lead to War Between the States—Alexander Hamilton

• The Federalist Papers #7 B: Without Union, Economic Disagreements Would Drive the States to Conflict with One Another—Alexander Hamilton

• The Federalist Papers #8: Without Union, the States Would Either Be Subject to Devastating Wars with Each Other or Would Have Liberty Endangered by their Own Standing Armies—Alexander Hamilton

• The Federalist Papers #9 A: There Has Been Technological Progress in Practical Principles of Republican Government—Alexander Hamilton

• The Federalist Papers #9 B: A Large Confederation May Be More Politically Stable Than a Small Nation—Alexander Hamilton Cites Montesquieu

• The Federalist Papers #10 A: Conflicts Arising from Differences of Opinion Are an Inevitable Accompaniment of Liberty—James Madison

• The Federalist Papers #10 B: The Larger the Republic, the Easier It is to Find Thoughtful Legislators and the Harder It is to Put Together a Majority to do Unjust Things—James Madison

• The Federalist Papers #11 A: United, the States Can Get a Better Trade Deal—Alexander Hamilton

• The Federalist Papers #11 B: Union Will Make Possible a Strong Navy, Allowing America to Chart Its Own Destiny—Alexander Hamilton

• The Federalist Papers #12: Union Makes it Much Easier to Get Tariff Revenue—Alexander Hamilton

• The Federalist Papers #13: Alexander Hamilton on Increasing Returns to Scale in National Government

• The Federalist Papers #14: A Republic Can Be Geographically Large—James Madison

• The Federalist Papers #15: A Government, to be Worthy of the Name, Must Govern Its Citizens, Not Just Its Subordinate Jurisdictions—Alexander Hamilton

• The Federalist Papers #16: Authority of the Federal Government Directly over Individuals Means States Can Only Thwart the Federal Government by Active and Obvious Resistance—Alexander Hamilton

• The Federalist Papers #17: Three Levels of Federal Power

• The Federalist Papers #18: Alexander Hamilton and James Madison Point to the Weakness of Confederations of Cities in Ancient Greece to Argue for a Strong Federal Government

• The Federalist Papers #19: The Weakness of the German Empire, Poland and Switzerland up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison

• The Federalist Papers #20: The Weakness of the United Netherlands up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison

• The Federalist Papers #21 A: Constitutions Need to be Enforced—Alexander Hamilton

• The Federalist Papers #21 B: Alexander Hamilton Complains of the Lack of a Measure Such as GDP Suitable for Apportioning Taxes to the States

• The Federalist Papers #22 A: The Articles of Confederation Lead to Uncoordinated Trade Policy and Military Free-Riding—Alexander Hamilton

• The Federalist Papers #22 B: Supermajority Rules Aren't an Adequate Fix for Departures from One-Person One-Vote—Alexander Hamilton

• The Federalist Papers #22 C: Pillars of Democracy—The Judicial System, Military Loyal to the Constitution, and Police Loyal to the Constitution

• The Federalist Papers #23: The Federal Government Must Be Given Sufficient Power to Accomplish Whatever We Expect the Federal Government to Do—Alexander Hamilton

• The Federalist Papers #24: The United States Need a Standing Army—Alexander Hamilton

• The Federalist Papers #25: Prohibiting a Standing Army in Time of Peace Would Be a Mistake—Alexander Hamilton

• The Federalist Papers #26: Some Part of the Government Must Be Able to Authorize an Army Whenever Necessary, after Being Forced to Fully Debate the Issue—Alexander Hamilton

• The Federalist Papers #27: People Will Get Used to the Federal Government—Alexander Hamilton

• The Federalist Papers #28: The Federal Government and States Can Check One Another’s Power, Reducing the Chance of Abuses—Alexander Hamilton

• The Federalist Papers #29: State Militias such as the National Guard are Not Attractive Tools for Tyrants—Alexander Hamilton

• The Federalist Papers #30: A Robust Power of Taxation is Needed to Make a Nation Powerful

• The Federalist Papers #31: Alexander Hamilton's Attempt at a Formal Argument for a Robust Federal Power of Taxation

• The Federalist Papers #32: The States Retain All Powers Not Explicitly Taken Away by the Constitution—Alexander Hamilton

• The Federalist Papers #33: The 'Necessary and Proper' and Supremacy Clauses Only Make Explicit What the Specified Powers Imply—Alexander Hamilton

• The Federalist Papers #34: War is Expensive. To Defend the Union, the Federal Government Needs an Ample Power of Taxation—Alexander Hamilton

• The Federalist Papers #35 A: Alexander Hamilton as an Economist

• The Federalist Papers #35 B: Alexander Hamilton on Who Can Represent Whom

• The Federalist Papers #36: Alexander Hamilton on Regressive Taxation

• The Federalist Papers #37: Why the Constitution Isn't Perfect—And Why No Constitution Could Be. James Madison

• The Federalist Papers #38—James Madison Analyzes the Proposed Constitution Using the Principle of Opportunity Cost: What is the Alternative to the Consensus of the Constitutional Convention?

• The Federalist Papers #39: James Madison Downplays How Radical the Proposed Constitution Is

• The Federalist Papers #40: James Madison Argues the Constitutional Convention Had the Warrant to Make Its Proposal—and Its Advice Should Be Taken Even If Not

• The Federalist Papers #41: James Madison on Tradeoffs—You Can't Have Everything You Want

• The Federalist Papers #42: Every Power of the Federal Government Must Be Justified—James Madison

• The Federalist Papers #43: The United States Constitution as a Commitment to Democracy at the State Level—James Madison

• The Federalist Papers #44: Constitutional Limitations on the Powers of the States—James Madison

• The Federalist Papers #45: James Madison Predicts a Small Federal Government

• The Federalist Papers #46: Cities and States Have a Strong Position in Struggles with the Federal Government—James Madison

• The Federalist Papers #47: Separating Legislative, Executive and Judicial Powers is a Good Principle, But Perfection in this Regard is Impossible—James Madison

• The Federalist Papers #48: Legislatures, Too, Can Become Tyrannical—James Madison

• The Federalist Papers #49: Constitutional Conventions Should Be Few and Far Between

• The Federalist Papers #50: Periodic Commissions to Judge Constitutionality Won't Work