Virginia Constitution

The Virginia Constitution is invoked in The Federalist as evidence that a formal declaration of separated powers does not by itself prevent their concentration. Its language insists that the legislative, executive, and judicial departments remain distinct, yet the arrangements Madison describes leave appointments, tenure, and even a case of pardon within legislative reach. That contrast turns the constitution into a practical test of constitutional design: a rule on paper needs institutional means to defend it.

Declared Separation and Its Exceptions

The constitution states that the three departments shall be separate and distinct, and that none shall exercise powers properly belonging to another. It also bars any person from exercising the powers of more than one department at the same time, except that justices of county courts may be eligible to either house of the Assembly. The text therefore presents separation as a governing principle while expressly allowing a limited overlap.

Madison’s comparison focuses on the tension between this declaration and the actual arrangements of government. The chief magistrate and executive council are appointable by the legislature, and the legislature can displace two council members every three years. The principal executive and judicial offices are filled by the same department. In one case, the executive prerogative of pardon is vested in the legislature. The constitution’s own exceptions and appointment provisions thus complicate the clean division its language announces.

Dependence and Legislative Encroachment

For Madison, the decisive weakness is not merely that powers touch, but that the executive and judiciary depend on the legislature. He cites Thomas Jefferson, who had served as Virginia’s chief magistrate, to describe the consequences: the legislature’s reach into the other departments leaves them without an effective barrier when it assumes executive or judicial functions. Because legislative decisions can be put into the form of acts of Assembly, they can bind the branches that should be able to resist.

Jefferson’s account identifies concrete forms of encroachment. The legislature has decided rights that should have remained judicial controversies, while direction of the executive during legislative sessions has become habitual. The danger lies in the combination of authority and dependence: a nominally separate department cannot reliably check the legislature if its place in office or capacity to act is subject to legislative control.

The Federalist’s Use of the Example

Madison places Virginia alongside Pennsylvania as evidence drawn from state experience, rather than treating the separation of powers as a purely abstract maxim. Virginia is especially revealing because its constitution explicitly declares the departments separate. The example therefore sharpens his distinction between constitutional language and constitutional safeguards: proclaiming a boundary does not ensure that officials have the means or institutional independence to hold it.

That reasoning also connects the Virginia example to Madison’s broader account of checks and balances. The problem is gradual concentration, not only an abrupt seizure of authority. Each department must have constitutional means and personal motives to resist encroachment; otherwise, the people’s ultimate authority remains the primary control without adequate auxiliary precautions. Virginia’s arrangements illustrate why declared separation, without effective independence, can leave the legislature dominant.

Madison’s discussion does not treat the Virginia Constitution as proof that every provision is defective. It uses selected features—legislative appointment, displacement of executive council members, shared responsibility for filling principal offices, and legislative possession of a pardon power—to show how dependence can erode the separation the text proclaims. Its significance in the argument is this contrast between declared principle and working structure, a contrast that makes institutional checks necessary rather than ornamental.