• Laws should reflect the uniqueness of societies. “[Laws] should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way of life of the peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores, and their manners; finally, the laws are related to one another, to their origin, to the purpose of the legislator, and to the order of things on which they are established. They must be considered from all these points of view” (1, 1, 3). Clearly, Montesquieu argued that foreign governmental systems and laws do not necessarily serve the best interests of other countries, and he would object to their application by American jurists to interpreting the U.S. Constitution.
Montesquieu’s concern is with the imprudence, and worse, the danger of republican government attempting to transform the civil society—including superseding the effects of religion, family, commerce, traditions, customs, mores, etc.—through legal coercion. In a chapter titled “How some legislators have confused principles that govern men,” he wrote, “Mores and manners are usages that laws have not established, or that they have not been able, or have not wanted, to establish. The difference between laws and mores is that, while laws regulate the actions of the citizen, mores regulate the actions of the man. The difference between mores and manners is that the first are more concerned with internal, and the latter external, conduct” (3, 19, 16).
Montesquieu also believed that republican government does not work well over large regions, for the people are too diverse, their interests are too dissimilar, and their connection with the government is too distant. “It is in the nature of a republic to have only a small territory; otherwise, it can scarcely continue to exist. In a large republic, there are large fortunes, and consequently little moderation in spirits: the depositories are too large to put in the hands of a citizen; interests become particularized; at first a man feels he can be happy, great, and glorious without his homeland; and soon, that he can be great only on the ruins of his homeland. In a large republic, the common good is sacrificed to a thousand considerations; it is subordinated to exceptions, it depends upon accidents. In a small one, the public good is better felt, better known, lies nearer to each citizen; abuses are less extensive there and consequently less protected” (1, 8, 16). The issue of geographic size and diversity would become a major point of contention between the Federalists and Anti-Federalists during the ratification debates over the Constitution.
Furthermore, Montesquieu argued that a republic has the best chance of surviving if it consists of states that are also republican in nature. He wrote that “the federal constitution [a confederate government] should be composed of states of the same nature, above all republican states” (2, 9, 2). He recognized further that the states within a republic will be different in certain respects. “It is unlikely that the states that associate will be of the same size and have equal power. The republic of the Lycians was an association of twenty-three towns; the large ones had three votes in the common council; the medium-sized ones, two; the small ones, one. The republic of Holland is composed of seven provinces, large and small, each having one vote” (2, 9, 3). Of course, the United States Congress consists of two bodies—the House of Representatives, whose members are apportioned on the size of the population of each state, and the Senate, with two members from each state.
Obviously, Montesquieu’s The Spirit of the Laws had virtually nothing in common with the utopias in Plato’s Republic, More’s Utopia, Hobbes’s Leviathan, and, later, Marx’s workers’ paradise. Montesquieu’s greatest concern was with despotism’s threat to the individual and his political liberty. He argued for moderate, republican government, where the people choose their representatives and their representatives are prudent and virtuous. Aware of tyranny’s resoluteness and the nature of political power, Montesquieu insisted that republics must separate the three powers of government into different branches to ensure they are not united under one person or centralized in one institution.
Furthermore, he emphasized that the law must be stable and predictable, reflective of society’s mores, and made not to interfere with the individual’s routine except in cases of actual necessity. When disputes arise or violations of law occur, they are to be adjudicated by individuals who are independent of the legislative and executive branches and adhere strictly to the law’s meaning.
In addition to his separation-of-powers design, Montesquieu’s warning about a republic’s vulnerability should its size be too big and its scope too broad provided compelling political and intellectual justification for the federalism model in the American constitution. Even Montesquieu’s discussion of the republic of the Lycians, where member towns (states) were allocated votes based on their size, and the republic of Holland, where member states were each allocated a single vote regardless of size, provided guidance for organizing America’s future congress.
Montesquieu also rejected pure democracy, or extreme equality, where the public makes claims on the liberties and rights of the individual. He observed that property rights, commerce, and trade create wealth and economic progress, which benefit the individual and society. They also encourage peace between nations.
Montesquieu’s view of man, man’s nature, society, the law, and government would undoubtedly have led him to conclude that utopianism is despotism. He argued for liberty, equality properly understood, moderation, tolerance, and tradition. In political freedom, he believed the individual and society would prosper. Among his greatest thoughts were those aimed at the means of diminishing the opportunities for tyranny in government. Hence, Montesquieu’s advocacy for republicanism, constitutionalism, justice, and the rule of law. In The Spirit of the Laws, Montesquieu would provide a road map for the American constitution, in which a system of government is established to represent a diverse and dynamic society, and the individual lives free from the cruelty and domination of others and the government itself.
CHAPTER NINE
THE INFLUENCE OF MONTESQUIEU ON THE FRAMERS
THE TASK FACED BY the Framers of the Constitution was colossal. It made great sense that they would borrow from Charles de Montesquieu in developing a new government. He is believed to have been the most widely cited philosopher in America during the 1780s.1
It was certainly the case at the Constitutional Convention. Professor John R. Vile notes, “Delegates referred to Montesquieu a number of times during the Convention debates.2 On June 1, Pennsylvania’s James Wilson favorably cited Montesquieu’s commendation of a confederated republic;3 Montesquieu provided one of the authorities for Alexander Hamilton’s speech to the Convention on June 18;4 on June 23, Pierce Butler of South Carolina observed ‘the great Montesquieu says, it is unwise to entrust persons with power, which by being abused operates to the advantage of those entrusted with it’;5 on June 30, Virginia’s James Madison cited Montesquieu as authority for the view that the Lycian confederacy vested members with votes proportional to their importance;6 on July 17 Madison cited Montesquieu as opposing undue dependence of the executive on the legislative body;7 Maryland’s James McHenry drew a similar conclusion on September 6;8 on July 11, Virginia’s Edmund Randolph cited Montesquieu as saying that suffrage is ‘a fundamental article in Republican Govts.’;9 and other delegates reflected sentiments that Montesquieu had advocated.”10
SEPARATION OF POWERS
Clearly, one of Montesquieu’s most important contributions to the Constitution was his argument in The Spirit of the Laws for separate governing powers and against centralized, consolidated authority. Recall he wrote that “[w]hen legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is ther
e liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals” (2, 2, 6).
The delegates adopted this general design. The Constitution’s first three articles set forth the division of power in the new federal government.
Article 1, Section 1 of the Constitution provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article 2, Section 1: “The executive Power shall be vested in a President of the United States of America.…”
Article 3, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.…”
Echoing Montesquieu, Madison explained later in Federalist 47 that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.…”11
ENUMERATED POWERS
Even more, the delegates were not satisfied that dividing authority was enough to deter the despotism that might result from a central government. Therefore, rather than granting wide-ranging authority to each of the three branches to legislate, execute, and adjudicate, the delegates restricted the character of each branch by enumerating their specific powers for the purpose of protecting the liberty and rights of the individual, the sovereignty of the states, and the civil society.
The delegates’ actions in limiting the role and scope of the federal branches also comports with Montesquieu’s warnings about legislators in republican governments abusing their law-making power to destroy the nature of man and the civil society. Montesquieu cautioned, “There are two sorts of tyranny: a real one, which consists in the violence of the government, and one of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking” (3, 19, 3). “The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our natural genius.…” (3, 19, 5) “[W]hen one wants to change the mores and manners [of a nation], one must not change them by laws, as this would appear to be too tyrannical; it would be better to change them by other mores and other manners” (3, 19, 9). “Nature repairs everything.… May we be left as we are. Our discretions joined to our harmlessness make unsuitable such laws as would curb our social humor” (3, 19, 6).
Nonetheless, the constitutional plan was attacked for not being clear enough about the separate roles of each of the three branches, one from the other. In defense, Madison wrote, “The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying, and recommending it most effectually to the attention of mankind.… [I]n saying ‘there can be no liberty 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. Here then the difficulty appeared in full view. On one hand, the United States contain an immense extent of territory, and, according to the foregoing opinion, a despotic government is best adapted to that extent. On the other hand, it was well-known, that, however, the citizens of the United States might, with pleasure, submit to the legitimate restraints of a republican constitution, they would reject, with indignation, the fetters of despotism.…”13
Wilson discussed the various forms of government from which the delegates could construct the American system. He concluded, “The extent of territory, the diversity of climate and soil, the number, and greatness, and connection of lakes and rivers, with which the United States are intersected and almost surrounded, all indicate an enlarged government to be fit and advantageous for them. The principles and dispos
itions of their citizens indicate that in this government, liberty shall reign triumphant. Such indeed have been the general opinions and wishes entertained since the era of independence. If those opinions and wishes are as well-founded as they have been in general, the late Convention were justified in proposing to their constituents, one confederate republic as the best system of a national government for the United States.”14
The Anti-Federalists at the Pennsylvania Convention responded, in part, by addressing Wilson’s invocation of Montesquieu. “WE Dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the power of internal government; but united in the management of their general, and foreign concerns. If any doubt could have been entertained of the truth of the foregoing principle, it has been fully removed by the concession of Mr. [James] Wilson, one of the majority on this question, and who was one of the deputies in the late general convention.… [T]he powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government, which from the nature of things will be an iron-handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government.…”15
The Anti-Federalists insisted that as configured under the Constitution, the states could not defend their sovereignty against a federal government fortified with such enormous power. “We apprehend that two coordinate sovereignties would be a solecism in politics. That therefore as there is no line of distinction drawn between the general, and state governments; as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things, that both should exist together, one or the other would necessarily triumph in the fullness of dominion. However the contest could not be of long continuance, as the state governments are divested of every means of defense, and will be obliged by ‘the supreme law of the land’ to yield at discretion.”16 The Anti-Federalists pointed out that explicit recognition of state authority provided in the Articles of Confederation was missing in the Constitution. “The new constitution, consistently with the plan of consolidation, contains no reservation of the rights and privileges of the state governments, which was made in the confederation of the year 1778, by article the 2nd. ‘That each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.’”17
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