I. Introduction
In 1900, on the eve of the twentieth century, E. L. Godkin—founder and longtime editor of The Nation and for sixteen years editor-in-chief of The New York Evening Post—surveyed the American political landscape, as he had so often done in the four decades preceding, and registered profound dismay. “The Declaration of Independence,” he wrote, “no longer arouses enthusiasm; it is an embarrassing instrument which requires to be explained away. The Constitution is said to be ‘outgrown.’ ” Those who once “boasted that it had secured for the negro the rights of humanity and of citizenship” now listen “in silence to the proclamation of white supremacy” and make “no protest against the nullifications of the Fifteenth Amendment.”Footnote 1
Godkin's observations were both accurate and prescient. They reflected the impact of Progressivism and forecast its consequences. He did not live to witness the 1912 presidential campaign. Had he done so, he might have been inconsolable. For the victor in that contest went all out in his campaign in an attempt to educate the American people in the principles underpinning the species of thinking that regarded the Declaration as an embarrassment, the Constitution as an anachronism, and white supremacy as a consummation devoutly to be wished. “We are in the presence of a new organization of society,” Woodrow Wilson told prospective voters. This generation is witness to “a new social stage, a new era of human relationships, a new stage-setting for the drama of life,” in which “the old political formulas” do not apply. “They read now like documents taken out of a forgotten age.” Above all, he insisted, what Thomas Jefferson once taught is now out of date. It is “what we used to think in the old-fashioned days when life was very simple.”Footnote 2
Wilson's tone was patronizing. As president of Princeton University, persuaded that the older generation was “out of sympathy with the creative, formative and progressive forces of society,” he had tried “to make the young gentlemen of the rising generation as unlike their fathers as possible.” Now, if his listeners voted for him, he intimated that he would do something similar as the President of the United States. To begin with, he would convince his compatriots to get “beyond the Declaration of Independence.” That document “did not mention the questions of our day,” he observed. “It is of no consequence to us”—not, in any case, “unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstances of the day in which it was conceived and written.” And, strikingly, Wilson made no attempt to produce such a translation himself, for he thought the Declaration “an eminently practical document, meant for the use of practical men; not a thesis for philosophers, but a whip for tyrants; not a theory of government, but a program of action”—once apt, now no more than a memory.Footnote 3
Wilson would also attempt to persuade his compatriots to dispense with the Constitution. For Charles-Louis de Secondat, baron de La Brède et de Montesquieu, whom he mentioned by name, he displayed even less respect than he reserved for Jefferson, and he had little use for the frame of government established in the fledgling United States under the French philosopher's influence. The separation of powers embodied therein, the system of balances and checks, and the division of authority between nation and state were, he thought, regrettable. “Government,” he told his listeners,
is not a machine; but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living things can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose…. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action…. Living political constitutions must be Darwinian in structure and in practice.
All that he and his fellow Progressives wished or desired was permission—in an era in which “development” and “evolution” were the scientific words—to interpret the Constitution according to Darwinian principle.Footnote 4
Had E. L. Godkin lived to hear or read the speeches Wilson delivered in the course of the 1912 campaign, he would not have been surprised to learn thereafter that one of the latter's very first acts as President was to make white supremacy the rule within the federal government by segregating the civil service and requiring that future applicants betray their race and open themselves up for rejection by supplying a photograph.Footnote 5 Godkin was no less cognizant than Wilson of the connection between the Declaration of Independence, American constitutionalism, and the presumption that individuals by nature equal and free deserve equal protection and equal treatment under the law.
Whether Godkin would have mentioned Jefferson and Montesquieu in the same breath, as Wilson did, we do not know. The connection between the two is by no means self-evident. Jefferson is most famous for his statement of first principles, Montesquieu, for his contribution to the study of political psychology and political architecture—and it is by no means obvious that the latter was, like the former, an exponent of modern natural right. After all, Jean-Jacques Rousseau charged that Montesquieu limited himself to the sphere of positive right,Footnote 6 and David Hume thought him a rationalist on the model of René Descartes's great Augustinian admirer Nicolas Malebranche.Footnote 7 Some scholars argue that the French philosophe operated within the peculiarly modern natural-right understanding first laid out by Thomas Hobbes in the seventeenth century and subsequently taken up and refined by John Locke,Footnote 8 but it is by no means obvious that they are right.
II. Natural Right
It is easy to see why some of Montesquieu's most discerning readers should be at odds in their understanding of the foundations of his thinking.Footnote 9The Spirit of Laws (1748) is a work immense in size and scope, and its argument and structure are exceedingly complex. Like Montesquieu's epistolary novel, Persian Letters (1721), moreover, it is a literary work—playful, elliptical, subtle, and sometimes seemingly self-contradictory—designed, as its author once hinted, first and foremost to make his readers think, and not simply and solely to make them read.Footnote 10 When charged with obscurity,Footnote 11 Montesquieu at first expressed annoyance;Footnote 12 then, he intimated that his book was “a great machine made to produce an effect.” There might, he observed, be “wheels” within the machine visibly turning “in directions opposed,” but the “assemblage” does not “get in its own way” and the machine does not “bring itself to a halt.” Instead, its “separate parts, which appear at first to destroy themselves, unite together for the object proposed.”Footnote 13
Playfulness and subtlety were not the only sources of confusion. Montesquieu also had to write with the censor in mind.Footnote 14 Indirection was sometimes on his part required. In some measure he had to conceal his design.Footnote 15 Given the influence exercised by the Roman Catholic Church, he had to be especially careful to remain in the vicinity (if not within the confines) of orthodoxy in his treatment of matters metaphysical, and, of course, he could not say anything overtly hostile to the French monarchy.
When Rousseau remarked that Montesquieu had deliberately sidestepped articulating “principles of political right,” when he asserted that his predecessor had “contented himself with treating positive right under established governments,”Footnote 16 he was giving too much weight to Montesquieu's politic denial that he had composed his Spirit of Laws “to censure that which is established in any country at all”; he was accepting as true the latter's no less politic assertion that “each nation will find here the reasons for its maxims”;Footnote 17 and he was understating the significance of Montesquieu's unrelenting campaign against prejudice, his open condemnation of despotism, and his readiness to criticize not only particular institutions and practices but forms of government as well.Footnote 18 When Hume mocked the metaphysical claims articulated in the initial chapter of the first book of The Spirit of Laws, Footnote 19 he failed to consider whether these were consistent with their author's account of the state of nature and of the emergence of political society in the two chapters immediately thereafter.Footnote 20 Neither of Montesquieu's two greatest contemporaries read him with sufficient sympathy, close attention, and care.
When, in his first chapter, Montesquieu contends that “to say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that, before a circle was drawn, all its radii were not equal,” he appears to be asserting that natural law is a deductive science. When, however, in the two chapters immediately subsequent, he describes the stages by which a solitary being is drawn by his passions first into association with other human beings, then (and only then) into intestine war, and thereafter into the institution of a state equipped with a system of political and civil right, into wars between states, and into the development of a ius gentium, he is sketching a hypothetical history meant to illuminate the logic underlying human experience and to clarify the ends which the various types of law are meant to serve.Footnote 21
In the first of these three chapters, Montesquieu accommodates the censor. In the second and third, where he might have alluded to the Garden of Eden and the Fall in the manner of a political theologian, he opts, instead, to recast Thomas Hobbes' alternative account of man's original condition.Footnote 22 But, although he appropriates the Englishman's premises, he turns them against his conclusions, offering an account of natural right intended as a partial corrective to Locke as well. If Montesquieu was, as some suppose, a natural law theorist of a traditional sort, there is little sign of it after the first chapter of The Spirit of Laws. The evaluative stance that he adopts throughout the remainder of that work dovetails nicely with the variation on the Hobbesian and Lockean positions that he outlines in its second and third chapters. It is, he intimates, a dictate of what we would call objective natural right that one respect the subjective rights that men retain when they depart of their own volition from their natural state.
Montesquieu distinguishes himself from Hobbes in a manner that was destined to become commonplace in the course of the eighteenth century.Footnote 23 Like the author of Leviathan (1651), he took man to be a passionate animal endowed with, but not in a straightforward fashion governed by, reason; and, like him, he had a healthy respect for the role that came to be played in human affairs by fear. But he did not regard fear as the only passion to be reckoned on. Nor did he think it primordial. There are “laws of nature” rooted in “the constitution of our being,” he asserted, and he agreed with Hobbes that “to know them well, one must consider” the situation of the individual “before the establishment of societies,” for he, too, was persuaded that “the laws of nature are those which he would receive in such a state.” Montesquieu insists, however, that such a man would not be instinctively aggressive, as Hobbes had contended. In the beginning, he would not be sufficiently knowledgeable and speculative to be able to imagine establishing his own dominion. Instead, he would be acutely sensitive to his own weakness, timid, and instinctively inclined to keep the peace and seek nourishment, which would be for him natural laws. He would also be sociable—drawn to his own kind initially by an awareness of reciprocal fear, by “the pleasure that an animal feels at the approach of an animal of its own kind,” and by “the charm that the two sexes inspire in one another by their difference”—and “the natural appeal” that human beings make to one another would constitute for him a third law. The knowledge attained in the course of human interaction would constitute yet another bond, “and the desire to live in society” would be for primitive man “a fourth natural law.”Footnote 24
Of course, Montesquieu was perfectly prepared to acknowledge that, in time, men would contract a desire “to subjugate one another,” but he insisted that this would not happen until societies had been established and men had begun to speculate, and this desire would initially be restrained by mores of the sort that constitute political and civil right among hunter-gatherers and nomads, which would quickly develop in response to the danger posed. As Montesquieu subsequently makes clear, organized political society—and despotism—come much later in time and tend to be coeval with the discovery of agriculture, the institution of property in land, and the invention of coinage.Footnote 25
The overall point that Montesquieu seeks to make by way of this hypothetical history is that nature does, indeed, have a teaching for man, but that this teaching is as complex as the skein of human passions, that its practical dictates differ from one situation to another, and that, in politics, there is no one passion to be reckoned on; no single, all-encompassing imperative to be fulfilled; and no form of government that is always and everywhere superior. In this regard, his outlook was not unlike that evidenced in The Statesman by Plato, who acknowledged the existence of a multiplicity of disparate goods, who compared statesmanship with weaving, and who believed that, in lawgiving and in the formulation of public policy, there is no substitute for prudence.Footnote 26
In his Persian Letters, Montesquieu floated the notion that the government “most in conformity with Reason” and “most perfect” is “a Government gentle,” free from unnecessary “severity,” which “moves towards its end with minimal expense” by conducting “men in the manner that accords best with their propensities and inclinations.” In his magnum opus, he refined this argument, contending that “the government most in conformity with nature is that government whose particular disposition best relates to the disposition of the people for whom it is established.” Montesquieu may have endorsed a species of universalism when he defined “law, in general,” as “human reason, insofar as it governs all the peoples of the earth,” but he insisted at that same time on qualifying this claim. To “the political and civil laws of each nation,” he attributed a measure of rationality. Despite their disparity, he said, these laws are “nothing other than the particular cases to which this human reason applies itself.”Footnote 27
The author of The Spirit of Laws was trained in the law, and he had once been a judge. His outlook resembled in certain respects that of the English jurist Sir Edward Coke. Neither was inclined to embrace abstract schemes, but both believed that, by way of the artificial reasoning of jurists, natural right could and should inform the evolution of the law.Footnote 28 In explaining what he had in mind, Montesquieu argued that “reason has a natural” and even “a tyrannical empire” over man. If, he observed, “one resists” reason, “this resistance” itself will nonetheless prove to be the foundation of reason's “triumph.” Circumstances will force a reconsideration. “Just a little time,” he writes, “and one is forced to return to her side.” To reasoning as a process, to trial and error, and to piecemeal reform, especially when carried out gradually and unobtrusively by judges in the ordinary course of their duties, he was, in consequence, the greatest of friends; and this is why he thought it possible, on the basis of the “principles” that he had with great effort articulated in his book, to specify the logic or esprit evident in laws produced in the course of time by the repeated application of “human reasoning” to “particular cases.” But, by the same token, to rationalism left in politics unchecked, unbridled, and unobstructed he was firmly—even fiercely—opposed. It was his aim “to prove” that “the spirit of moderation ought to be that of the legislator.”Footnote 29
There was, however, an obstacle to the sway of what Montesquieu had in mind when he spoke of moderation, and it was exemplified in different ways by Hobbes and Locke. It is “a misfortune attached to the human condition,” Montesquieu observes, but one cannot deny the fact:
Great men who are moderate are rare; and as it is always easier to follow one's strength [force] than to arrest it, within the class of superior people, one may perhaps with greater facility find people extremely virtuous than men extremely wise.
The soul takes so much delight in dominating other souls; even those who love the good love themselves so strongly that there is no one who is not so unfortunate as to still have reason to doubt his own good intentions: and, in truth, our actions depend on so many things that it is a thousand times easier to do good than to do it well.Footnote 30
In this passage, Montesquieu draws attention to the fact that there is something inherently immoderate and perhaps even tyrannical at the heart of all forms of political idealism and public spiritedness. There is another passage in which he spells out the consequences.
“There are,” he observed, “certain ideas of uniformity, which sometimes lay hold of men of great spirit,” such as Charlemagne, “and which infallibly strike small spirits, who find in it a species of perfection that they recognize because it is impossible that they not discover it: in public administration the same weights, in commerce the same measures, in the State the same laws, in all parts the same religion.” Montesquieu himself doubted whether uniformity was “always without exception à propos”; and, by way of posing a rhetorical question, he insisted that “greatness of genius consists more in knowing in what case uniformity is needed and in what case differences are required.”Footnote 31 In contrast with Hobbes and the champions of enlightened despotism, in opposition to Locke and those who flatly denied the legitimacy of absolute monarchy, he thought the political and social diversity produced in different lands by the process of trial and error apt to be consistent with the dictates of reason. When he suggested that governments need to be tailored to the dispositions of the peoples for whom they are framed, he added that it would be “a very great accident if the laws of one nation” were “able to suit another.”Footnote 32
To explain why this should be so, Montesquieu outlined the overall argument of his work. First, and most important, he contended, one must consider the laws in relation “to the nature and to the principle of the government which is established, or which one wishes to establish,” for that there be some such rapport is a matter of necessity: “either the laws form this government, as do the political laws, or they maintain it, as do the civil laws.” Then, he added that one can also expect the laws to be related
to the country in its physical aspect; to the climate, whether it be icy, broiling, or temperate; to the quality of the terrain, to the country's situation, to its size; to the species of life adopted by the peoples, whether they be husbandmen, hunters, or herdsmen; it should be related to the degree of liberty that the constitution is able to tolerate, to the religion of the inhabitants, to their inclinations, to the riches they possess, to their number, their commerce, their mores, their manners. Finally, the laws have relations with one another; they have relations with their origin, with the object of the legislator, with the order of things on which they are established.
“It is,” he concluded, “from all of these perspectives that one must consider the laws”;Footnote 33 and, of course, this is precisely what he did in his massive tome.
Montesquieu did this, and he did more. After taking all of these rapports into consideration, he sat in judgment on the governments established and on their laws, assessing the latter not only in terms of their situational propriety but also with an eye to natural right. In the preface to his Spirit of Laws, Montesquieu asserts,
It is not a matter indifferent that the people be enlightened [éclairé]. The prejudices of the magistrates had their beginning as the prejudices of the nation…. I would believe myself the happiest of mortals if I could act in such a manner as to make it possible for human beings to cure themselves of their prejudices.
When Montesquieu speaks of “prejudices,” he has in mind “not that which causes one to be unaware of [ce qui fait qu'on ignore de] certain things but that which causes one to be unaware of oneself [ce qui fait qu'on s'ignore soi-même].” “Man” he describes as “that flexible being who accommodates himself in society to the thoughts and impressions of others.” As such, he “is equally capable of knowing his own nature when one shows it to him and of losing even the sentiment of it when one conceals it from him.”Footnote 34
In Montesquieu's judgment, the task of the philosopher is to dispel human self-forgetfulness by bringing home to man just who and what he really is: a being born in the state of nature equal to his fellows who loses that equality when he enters society and has it restored to him “again through the laws.”Footnote 35 From enlightenment in this regard, the French philosophe believed, a profound moral progress will ensue—for the “knowledge” produced by enlightenment will not only “enable human beings to cure themselves of their prejudices” but make them “gentle [doux]”—since “reason leads” men “to humanity,” and “only prejudices cause them to renounce it.”Footnote 36
Although Montesquieu was profoundly sensitive to the tyrannical potential inherent in the speculative spirit—although he was inclined initially to withhold judgment, to respect diversity, to be suspicious of rationalism in politics, to reject the taste for uniformity, and to trust in the process of trial, error, and reconsideration, especially as this process was reflected in the common-law traditions of Europe—he was not apt simply to acquiesce in the drift of things. He may have been reluctant much of the time to specify the dictates of natural right in particular circumstances, but he insisted that there are “laws of nature” distinct from “local laws,”Footnote 37 and he sometimes bluntly addressed grievous breaches of nature's dictates which were commonplace in his own time.
Woodrow Wilson was right to link Montesquieu and Jefferson. For on the rare occasions when Montesquieu did assert himself in this fashion, what he had to say tended not only to be consistent with the logical implications of the argument presented by Locke in his Two Treatises of Government (1690) but also to anticipate the principles subsequently espoused by Jefferson. Thus, for example, Montesquieu is no less committed to the notion of human self-ownership than was Locke, and he is no less sensitive than were Locke and Jefferson to the fact that, when human beings enter into civil society, they retain in extremis a natural right to self-defense. In consequence, he regards statutes that fail to allow for its exercise as contrary to natural law.Footnote 38 In similar fashion, he condemns the monarchical propensity for making war out of a longing for glory and asserts that, given the ends for which government has been established among men, it is contrary to right for a polity to initiate war in circumstances in which the political community's self-preservation is not at stake.Footnote 39 Montesquieu is no less blunt in his categorical rejection of slavery—which is inconsistent, he points out, with what we learn concerning the natural equality of men and the ends of political order from tracing the path which human beings take from the state of nature to civil society, and which can be justified only insofar as holding others in servitude is temporarily required for one's own self-preservation.Footnote 40 It was with an eye to the ends of political order that he also intimated that the persecution visited on the Jews by the Inquisition is contrary to “the feeble lights of justice that nature gives us.”Footnote 41
Where, in appealing to the dictates of nature, Montesquieu not only works out the unstated implications of Locke's argument but goes beyond it entirely, his commitments reflect the manner in which his account of man's natural condition and his departure from it deviates from the story told in The Two Treatises of Government. Thus, for example, when Montesquieu contends that “the laws of modesty [la pudicité],” as these apply to women, “are a part of natural right and ought to be felt by all the nations of the world” and, again, when he insists that civil law respect the natural obligations pertaining within the family,Footnote 42 he has in mind what can be inferred from his own analysis of the pre-political sociability of man.
One could even argue that Montesquieu's general posture regarding forms of government and particular laws follows from his understanding of nature and nature's laws. It is by no means an accident that he first alludes to “natural right” in the very chapter in which he first draws a distinction between moderate and despotic governments. One could sum up his case against the latter by noting—as Montesquieu does, in fact, note—that a despot may be restrained by “the laws of religion,” which apply to him as they apply to his subjects, but that he cannot be restrained by objective “natural right” and forced to respect the subjective natural rights adhering to individuals as such because, when a man becomes a prince within such a form of government, he is “no longer assumed to be a man” subject—as he would be were he a mere man—to the terms of the tacit agreement that gives rise to civil society among men.Footnote 43
III. The Constitution of Liberty
It is this general posture with regard to natural right that explains Montesquieu's interest in what he calls “political liberty.” When he first makes the latter subject thematic, he draws attention to the ambiguities inherent in the popular usage of the term. Then, for the purpose of clarity, he draws a sharp distinction between “the power of the people” and “the liberty of the people.” To clarify further, he distinguishes liberty also from the “independence” possessed by those in the state of nature, denying emphatically that “political liberty … consists in doing what one wants.” In a political order, he explains, “in a state, in a society where there are laws, liberty can consist only in being able to do what one ought to want and in not being constrained to do what one ought not to want.” Put less cryptically, “liberty is the right to do everything the laws permit; and if one citizen were able to do what they forbid, he would no longer have liberty because the others would likewise possess this same capacity.” That which Montesquieu calls “political liberty in its relation with the constitution” is the unfettered freedom to act within the protected space opened up by the rule of law.Footnote 44
Montesquieu was not, as the emphasis he placed on political liberty in these passages might be taken to suggest, a doctrinaire republican persuaded that no government but a republic can be legitimate. Indeed, he was not, strictly speaking, a republican at all. After distinguishing between “the liberty of the people” and “the power of the people,” he went on to advance the startling claim that “democracy and aristocracy are not in their nature free States,” then to add that “political liberty is not to be found except in moderate governments” and “not always” there. Political liberty, he explains, “is not present except where there is no abuse of power, and it is an eternal experience that every man who has power is drawn to abuse it; he proceeds until he finds the limits.” It is in alluding to the human propensity for the abuse of power that he pointedly criticizes the passion for the public good, the instinct for self-sacrifice, and the love of equality that he elsewhere identifies as the psychological principle underpinning republican government and setting it in motion. “Who would say it!” he exclaims. “Even virtue has a need for limits.”Footnote 45
It is in this context that Montesquieu brings up the system of deeply embedded institutional constraints and restraints, balances, and checks that we would now call constitutionalism. To prevent those most likely to strive for what he calls “independence” from being “able to abuse power,” he observes, “it is necessary that in the disposition of things power check power.” It is his claim that “a constitution can be such that no one will be constrained to do things that the law does not require or prevented from doing those which the law permits him to do.”Footnote 46 But he evidently thinks it unnatural for there to be checks on power in a republic. Those who constitute the ruling order in such a polity are not inclined to distrust their own capacity; they do not tend to suppose that they are themselves apt to do wrong. The public-spiritedness which they do possess is at odds with the spirit of moderation, and it leads them to prefer what they take to be the public interest to the freedom accorded their fellow citizens by the silence of the law.
To grasp more fully what Montesquieu has in mind when he speaks of political liberty, one must attend to the distinction he draws between “political liberty in its relation with the constitution” and “political liberty in its relation with the citizen.” In one passage, he tells us that the latter is “that tranquility of mind [esprit] which comes from the opinion that each has of his security,” adding that, if he is to possess “this liberty, it is necessary that the government be such that one citizen be unable to fear [craindre] another citizen.” In another, he defines it as “security, or, at least, the opinion that one has of one's security,” adding that “it can happen that the constitution will be free and the citizen not” and that “the citizen will be free and the constitution not”; that while “only the disposition of the laws, and even the fundamental laws,” can “form liberty in its relation with the constitution,” liberty “in its relation with the citizen” can be made to arise “from the mores, from the manners, and from the received examples” prevalent within a political community and that it is less effectively promoted by political arrangements than by “certain civil laws.”Footnote 47
In the latter passage, Montesquieu goes on to assert that “the knowledge which one has acquired in some countries and which one will acquire in others with regard to the surest regulations that one can hold to in criminal judgments interests human kind more than anything else that there is in the world,” and thereafter he devotes chapter after chapter to examining these regulations. Then, he turns to taxation, emphasizing its psychological impact on those taxed, and linking “duties,” such as those “on commodities,” that “the people least feel” with both “moderate government” and “the spirit of liberty.”Footnote 48 Political liberty in its relation with the citizen, which appears to be the chief focus of his investigation, is evidently a state of mind. When human beings enter into civil society, what they seek is not just the substance of personal security but the tranquility of mind attendant on it.
Political psychology looms large in Montesquieu's overall argument. At the outset, he tells us, each form of government is set in motion by a particular passion or set of passions—despotism, by fear; democratic republicanism, by virtue and the love of equality; civic aristocracy, by an enforced moderation; and monarchy, by the longing for honor.Footnote 49 That political liberty is not to be found in a despotism goes without saying. That it is difficult to sustain within republics of virtue may at first seem odd to us, but Montesquieu suggests that the idealism required is intimidating and hard to confine within the rule of law.Footnote 50 Given the peculiar fashion in which Montesquieu articulates his argument, one might then be tempted to suppose that, in his judgment, monarchy on the traditional European model is the natural home of political liberty. The French philosophe was certainly prepared to assert that a well-regulated monarchy of the sort once prevalent throughout western Christendom—in which there is a landed nobility governed by a code of honor and the king exercises the legislative and executive powers while leaving judgment in court to a caste of men trained in jurisprudence and honor-bound to uphold the law—is a moderate form of government conducive to the rule of law and apt to safeguard “the security of individuals” and even give rise to “a spirit of liberty.”Footnote 51
As I have tried to demonstrate in detail elsewhere, however, Montesquieu held an adverse opinion regarding monarchy that he could not openly espouse in ancien régime France. Put simply, he was persuaded that traditional European monarchy's day was done; and, although he feared that it might collapse into despotism, he did not otherwise lament its prospective demise. As a young man, he had witnessed France's defeat in the War of the Spanish Succession (1701–1714), and he understood what it portended. He recognized that it was in the nature of this species of one-man rule to pursue conquest and glory. He was aware that its ethos of honor rendered it less able to engage in commerce than polities straightforwardly devoted to trade. He realized that in an age of commerce—in which money was to an ever-increasing degree the sinews of war—monarchies of this sort were unlikely to be able to project power as effectively as polities based on commerce, and he knew that repeated defeats on the field of the sword would shake such a regime to its foundations. He was, moreover, sensitive to the manner in which commerce, which presupposes a species of contractual equality between seller and buyer, threatened to erode the aristocratic spirit essential to monarchy, and he was aware that, in an age of enlightenment, monarchy on this model could not sustain the ethos of false honor that served as its psychological principle and uphold the artificial distinctions and ranks central to its very nature. Indeed, as a proponent of enlightenment persuaded that human beings are by nature equal, he thought that ethos incoherent and those distinctions and ranks morally reprehensible.Footnote 52
The author of The Spirit of Laws appears to have thought the well-regulated, law-abiding monarchies of medieval and early modern Europe an improvement on the republics of classical antiquity, but he was also no less sensitive than Locke and Jefferson to the manner in which their core institutions were based on harmful prejudices at odds with what nature has to teach us concerning the natural equality of man, and he judged them, in any case, no longer viable. Fortunately, there was an alternative. In England, the old monarchy had undergone a profound transformation, and the result—which had forced itself on the attention of Europe when, in the wake of the Glorious Revolution (1688–1689), the duke of Marlborough had repeatedly annihilated the legions of Louis XIV's France—was, Montesquieu implied, “a popular state,” which had to be understood as “a republic” of sorts.Footnote 53 Once, with greater precision, he even alluded obliquely to the English form of government as “a republic concealed under the form of a monarchy.”Footnote 54
This species of republic differed from the republics of virtue dominant in antiquity in four particulars. First, it was in its nature “a free State.”Footnote 55 In fact, it had “political liberty” as its “direct object.”Footnote 56 Second, the structure or nature of its government was defined by an elaborate and complex distribution and separation of the legislative, executive, and judicial powers that distinguished it from all existing monarchies and from other republics both ancient and modern.Footnote 57 One could not say of it what Montesquieu said of despotism with its pervasive ethos of fear—that it “jumps up, so to speak, before our eyes; it is uniform throughout: as the passions alone are necessary for its establishment, the whole world is good enough for that.” Instead, one had to repeat what he said concerning the formation of “a moderate government” more generally—that to form such a government, “it is necessary to combine powers, to regulate them, to temper them, to make them act, to give, so to speak, a ballast to one in order to put it in a condition to resist another; this is a masterpiece of legislation, which chance rarely produces and prudence is rarely allowed to produce.”Footnote 58
Third, the English polity resembled a type of republican government not unknown in antiquity but at that time marginal—which, unlike virtuous republicanism,Footnote 59 had survived into Christian times, and which Montesquieu termed variously “a democracy” or “republic based [fondée] on commerce.”Footnote 60 And, fourth, it had, at best, a tenuous relationship with religion, for the English had divested themselves of what Montesquieu called “harmful prejudices” and were as Christians lukewarm to the point of indifference.Footnote 61 As Montesquieu put it, the English were “the people in the world who best understood how to exploit at the same time three great things: religion, commerce, and liberty.”Footnote 62
In this mix, commerce played a crucial role. Montesquieu saw it as an adjunct to enlightenment apt to produce comparable consequences. “Commerce,” he wrote, “cures destructive prejudices” and promotes “gentle mores [moeurs douces]”—first by causing a “knowledge of the mores of all the nations to penetrate everywhere,” and then by encouraging men to “compare” their own ways with those adopted elsewhere.Footnote 63 Its “natural effect” is also “to promote peace,” for “two nations who do business together render themselves reciprocally dependent: if it is to the interest of one to buy, the other has an interest in selling; all such unions are based on mutual needs.”Footnote 64 The republics of antiquity were oriented to conquest and war;Footnote 65 their modern, commercial counterparts have as their esprit “peace and moderation.”Footnote 66 When forced into war, Montesquieu's England, thanks to its commercial wealth, could command vast resources with which to project power, but its focus on trade meant that it had no particular interest in territorial acquisition and that it was inclined to subordinate its political to its commercial interests. It was an enemy, Montesquieu intimated, that one had no need to acquire and very good reason to avoid.Footnote 67
In similar fashion, Montesquieu believed, commerce intensifies earthly temptations and subverts religious zeal and the fanaticism that so often accompanies it. “As a general rule,” he observes, “invitations contribute more forcefully to changing religion than do penalties,” and prudence dictates that one
attack religion by favor, by the conveniences [commodités] of life, by the hope of fortune; not by that which warns one of one's mortality but by that which makes one forget it; not by that which provokes indignation but by that which casts one into a disposition lukewarm [quit jette dans la tiédeur] so that other passions act on our souls and those which religion inspires fall silent.Footnote 68
Such are predictably the effects of the “solid luxury” produced by trade among a commercial people, such as the English, who are “always occupied with their own interests.”Footnote 69
For the most part, in his Spirit of Laws, Montesquieu emphasizes the role played by climate, terrain, territorial size, technology, commerce, religion, and the setting for war in determining the range of available political choices. In general, moreover, he gives priority to mores and manners. Forms of government are sometimes made to seem almost epiphenomenal. England is, however, an exception. In its case—and, insofar as we can tell, only in its case—“the mores follow the laws.” In its case, the laws contribute mightily to the formation of “the manners and the character” of the nation as well.Footnote 70
The laws that Montesquieu has in mind when he makes this monumental claim are those which form what he calls “the constitution of England” by distributing and separating the three powers. If monarchies on the European model are “moderate,” if they foster what Montesquieu calls “a spirit of liberty” able perhaps to “contribute as much to happiness as liberty itself,” if those who live under monarchical rule have no reason to “fear” anyone in particular, it is largely because Europe's kings do not themselves exercise “the power of judging” but delegate it to a particular order capable of resisting their blandishments and honor-bound to do so if what the monarchs seek is contrary to the law.Footnote 71 This is doubly true in England where there is trial by jury and “the power of judging, so terrible among men” is “attached neither to a certain condition nor to a certain profession” and “becomes, so to speak, invisible and null.” In consequence, in England, “one does not continually have one's judges before one's eyes; and one fears the magistracy and not the magistrates.” Moreover, the fact that the jury in England is made up of the peers of the accused means that “he cannot be of the mind that he has fallen into the hands of those inclined to do him violence,”Footnote 72 and later, when Montesquieu singles out for praise particular laws concerning crimes and taxation which he thinks most apt to foster “political liberty in its relation with the citizen,” the examples he has in mind are more often than not English in origin.Footnote 73
England differs also from the ordinary European monarchy in that it distinguishes the legislative from the executive power and distributes the two functions to separate bodies, conferring on the monarch a responsibility for defending the realm and executing the laws and on the House of Commons, checked by the House of Lords, a responsibility for making laws. This distribution and separation of these two powers has any number of good effects. To begin with, it means that one does not fear that laws tyrannically made will be tyrannically enforced. In fact, the body that makes the laws faces the sobering prospect that those same laws will be executed against its members—which is an encouragement to be fair-minded in legislating. Although the actual execution of the laws is in other hands, the legislative power is accorded a role in oversight after the fact, and the division between Lords and Commons not only encourages careful, repeated deliberation. It also provides the well-to-do with a safeguard against oppression. Montesquieu also places emphasis on the representative principle, arguing that a relatively small, elected body can deliberate in a more intelligent manner than the people as a whole, and stressing that the prospect of the next election serves to keep those in the House of Commons faithful to their constituents.Footnote 74
Long before the publication of his Spirit of Laws, in a work entitled Considerations on the Causes of the Greatness of the Romans and their Decline (1733), Montesquieu had identified “the Government of England” as “one of the wisest in Europe,” explaining that there is within it “a Body [Corps]” which
examines this government continually and continually examines itself; and such are this body's errors that they never last long, and are useful in giving the Nation a spirit of attentiveness [l'esprit d'attention].
In a word, a free Government, which is to say, a government always agitated, knows no way in which to sustain itself if it is not by its own Laws capable of self-correction.Footnote 75
From this opinion, Montesquieu never deviated. He had studied English history with some care. He was aware that, from the time of James I in the first two decades of the seventeenth century on, its politics had been characterized by a tension between what the English called “the Court” and what they dubbed “the Country.” Time and again, the latter had risen up in high dudgeon to denounce through its representatives in Parliament what was perceived as favoritism, corruption, arbitrary rule, conspiracy, and Papist predilections on the part of a Court thought to be intent on encroaching on the rights of ordinary Englishmen and the prerogatives possessed by Parliament.
As Montesquieu knew, these tensions had produced the English civil war of the 1640s, the execution of Charles I in 1649, the rule of the Rump Parliament and the Protectorate of Oliver Cromwell in the 1650s, followed by the Restoration of the monarchy in 1660 and, in time, the Glorious Revolution of 1688–1689. By the time Montesquieu arrived in England in the late 1720s, political pressures that had given rise to turbulence and bloodshed time and again were now being settled peacefully through electioneering and balloting, and monarchs found themselves forced to appoint as ministers those who had the confidence of Parliament. In England's historians, he had had Rica observe in his Persian Letters, “one sees liberty constantly spring forth from the fires of discord and of sedition,” and one finds “the Prince always tottering on a throne” which is itself “unshakable.” If the “Nation” is “impatient,” this character remarks, it is nonetheless “wise in its very fury.”Footnote 76
Montesquieu found the dynamics of English politics both instructive and amusing. “The hatred” that had long existed between Court and Country he regarded as a permanent feature. This hatred “would endure,” he observed, “because it would always be powerless,” and it would be powerless because “the parties” inspired by the separation of powers would be “composed of free men” who would be inclined to switch sides if either the executive power or the legislative power appeared to have “secured too much.”Footnote 77
The English were a commercial people who lived in what Montesquieu called “a republic concealed under the form of a monarchy.” The regime under which they were reared, being neither republican in the classical sense nor genuinely monarchical, did little to inculcate in them a spirit of self-sacrifice and even less to inspire in them a love of honor and glory. Instead, it left Englishmen to their own devices; and, in the absence of direction from above, they tended to succumb to the restlessness and anxiety that Montesquieu called inquiétude. In such a nation, he remarked, the charges lodged by the party in opposition to the executive branch “would augment even more” than usual “the terrors” to which a people so disposed were naturally prone, for they “would never know really whether they were in danger or not.”Footnote 78
Ordinarily, of course, the legislature, which enjoyed the confidence of the people, would be in a position to moderate their fears. “In this fashion,” Montesquieu noted, when “the terrors impressed” on the populace lacked “a certain object, they would produce nothing but vain clamors and name-calling; and they would have this good effect: that they would stretch all the springs of government and render the citizens attentive.” If, however, the terrors fanned by the party opposed to the English executive were ever “to appear on the occasion of an overturning of the fundamental laws,” he observed, “they would be muted, lethal, excruciating and produce catastrophes: before long, one would see a frightful calm, during which the whole would unite itself against the power violating the laws.” Moreover, he added, if such “disputes took shape on the occasion of a violation of the fundamental laws, and if a foreign power appeared,” as happened with the arrival of the Dutch Stadholder William of Orange in 1688, “there would be a revolution, which would change neither the form of the government nor its constitution: for the revolutions to which liberty gives shape are nothing but a confirmation of liberty.”Footnote 79
IV. Geographical Imperatives
There is one other dimension of this arrangement that deserves attention. Montesquieu was acutely aware that, in ancient Greece, all of the republics were exceedingly small; and—as he makes evident in the first part of his Spirit of Laws—he knew perfectly well why this was the case. He knew that they could not instill in the citizens the requisite public-spiritedness if they ceased to be face-to-face communities in which the citizens could easily pay “a singular attention to one another.”Footnote 80 He was also aware, however, that classical Rome—although it began as a small civitas no larger than an ordinary Greek pólis—came in time to rule not only Italy, but Spain, North Africa, the entire Mediterranean basin, and Gaul, and he recognized that, in the process of doing so, its citizen body became larger and larger and larger until the Roman respublica bore hardly any resemblance to a Greek pólis.
Republican Rome's expansion, its aggrandizement, its achievement of grandeur is the subject of the first half of his Considerations on the Romans, and the main point that Montesquieu seeks to drive home by way of his narrative is that Rome's expansion destroyed the republic. It did so, he makes clear, in the way that the Greeks had in mind when they refused to do what the Romans would later do—naturalize freedmen and other foreigners. In other words, it paved the way for its own ruin by eliminating the cohesion of the citizen body, by destroying its solidarity, and by making it impossible for it to elicit from the citizens public-spiritedness and civic virtue, as it once had done, through a civic paideía. But it also laid itself low in another fashion—for Rome's expansion required it to confer arbitrary power for extended periods on magistrates called proconsuls who were sent out with legions of soldiers to govern its provinces, suppress rebellions, and defend the borders of the empire, and these proconsuls, leading long-service armies increasingly made up of propertyless soldiers who were only notionally citizens, proved republican Rome's undoing. Rome was, in sum, the exception that proved the rule. It put the strictures laid down by the Greeks to the test, and eventually—as the Greeks predicted would happen—the republic collapsed.Footnote 81
Montesquieu returned to this question in his Spirit of Laws. This work is a gigantic book, and it is difficult to know which elements within it are the most salient. There is, however, one passage in which Montesquieu tells us outright that what he is about to say is fundamental to everything else that he says. “I,” he writes near the end of the first of the work's six parts, “shall be able to be understood only when the next four chapters have been read.”Footnote 82 Then, in those four chapters, he argues that forms of government are closely related to the size of the territory that must be governed. Republics are well-suited to territories small in extent; monarchies, to territories of intermediate size; and despotisms to territories great in size.Footnote 83
“It is in the nature of a republic,” Montesquieu writes, “to possess only a small territory.” In a large republic, “interests become particular; a man senses then that he can be happy, great, glorious without his fatherland; and soon that he can be great solely on the ruins of his fatherland.” One consequence of such a republic's size is that “the common good is sacrificed to a thousand considerations; it is subordinated to the exceptions; it depends on accidents.” The situation “in a small” republic is more favorable: there, “the public good is more fully felt, better known, closer to each citizen; abuses are less extensive there and as a consequence less well protected.”Footnote 84
By way of contrast, Montesquieu adds, “A large empire presupposes a despotic authority in the one who governs.” One cannot deny that “promptness in decision-making is required to compensate for the distance of the places to which orders are sent”; that “fear is required to prevent negligence on the part of the governor or magistrate operating at a great distance”; that, in such circumstances, “law must be lodged in a single head” and that “it must change unceasingly,” for “accidents” really do “multiply in a state in proportion to its magnitude.”Footnote 85 This, he does not have to say, was the experience of Rome.
Montesquieu stops at this point to let the force of the geographical imperative sink in. Later, he will return to the question and suggest federalism as an expedient. In war, individual republics are at a disadvantage when confronted by a monarchy or despotism: they lack the resources and the manpower necessary for an effective defense. If joined together in a confederation, however, they can have it both ways. Each republic can benefit from the advantage associated with diminutive size and sustain itself as such. In wartime, as a united body, they can pool resources and manpower and thereby become formidable to their adversaries. Moreover, these republics can support one another in yet another fashion. A would-be usurper would not possess equal credit in all of the federated states. “If he rendered himself excessively powerful in one, he would alarm all the others; if he subjugated a part, the part which remained free would still be able to mount resistance to him with forces independent of those he had usurped and overcome him before he had fully established himself.” In similar fashion, if a sedition or some species of abuse were to take place in one member of the confederation, the other members could step in and suppress it.Footnote 86
When he turns to England, Montesquieu is strangely—one might even say, ostentatiously—silent concerning the geographical imperative that he had hitherto so strongly emphasized. This was arguably one of the matters that the author of The Spirit of Laws had in mind when he wrote, “Silence sometimes expresses more than any discourse.”Footnote 87 For it is at the very end of the book in which he discussed the constitution of England that he remarked, “It is not necessary always to so exhaust a subject that one leaves nothing for the reader to do. The task is not to make him read but to make him think.”Footnote 88 One need only pause and reflect to realize that the territory governed under the English constitution is far too large to be encompassed by a republic of virtue. It is not, in fact, clear that Montesquieu thought that there were any limits to the territory that could be governed by the “republic concealed under the form of a monarchy” that he discovered when he visited Great Britain in the 1720s. Montesquieu makes no mention of such limits, and it is easy to see that the principle of representation expands in one way the geographical boundaries that such a polity can comprehend while the separation of powers does so in another way—for England's unitary executive can act in an emergency with as much vigor and dispatch as a despot; and, though he cannot be held personally accountable for abuses attendant on what he has done in this regard, his counsellors can.Footnote 89
Montesquieu is also ostentatiously silent in another particular. He never specifies what the psychological principle that sets the English form of government in motion might be. It cannot be fear, the principle animating despotism—for the English clearly possess “political liberty in its relation with the constitution,” if not also “political liberty in its relation with the citizen.” No one in England has reason to fear anyone else in particular. Nor can it be virtue—for Montesquieu attributes the failure of England's republican experiment during the interregnum to a lack of virtue on the part of the English people,Footnote 90 and he never once uses the term in referring to the English of his own day. Moreover, it is hard to see how virtue could be instilled in a people so numerous who are situated on so extended a territory. It would, in fact, appear to be the case that one could say of England what Montesquieu says concerning monarchy: that, in it, “policy makes great things happen with as little of virtue as it can” and that, “just as in the most beautiful machines, art also employs as little of movement, of forces, of wheels as is possible. The state subsists independently of love of the fatherland, of desire for true glory, of self-renunciation, of the sacrifice of one's dearest interests, and of all those heroic virtues which we find in the ancients and know only from hearing them spoken of.”Footnote 91 But if there is a psychological principle that substitutes for virtue and animates the English polity, it cannot be monarchical honor, which Montesquieu never once mentions in England's regard.
In a sense, there is no such principle. In England, Montesquieu tells us, all of the passions are left free. When this happens, to judge by Montesquieu's description of the national character of the English, inquiétude becomes the dominant psychological disposition. But this is not his final word on the question, for he also allows us to see that the uneasiness that has Englishmen in its grip is in turn given a focus and rendered less inchoate by the never-ending conflict that takes place in England between the legislative and executive powers. In effect, inquiétude is transformed thereby into a salutary, if irrational, species of partisan jealousy that does, in fact, animate the polity and that safeguards it as well by encouraging attentiveness on the part of the public and by causing Parliament to cast a beady eye on the Crown and vice versa as well.Footnote 92
V. American Constitutionalism
Montesquieu's attempt to articulate a species of modern natural right consistent with a restoration of prudential statesmanship to its rightful place was widely appreciated at the time. Overnight, The Spirit of Laws became the political Bible of learned men and would-be statesmen everywhere in Europe, and beyond. In Britain, it shaped the thinking of Edmund Burke, Edward Gibbon, William Blackstone, Adam Smith, Adam Ferguson, John Robertson, John Millar, Lord Kames, and Dugald Stewart among others,Footnote 93 and in America, it inspired the Framers of the Constitution and their opponents, the Antifederalists, as well.Footnote 94 In Italy, it had a profound effect on Cesare Beccaria,Footnote 95 and in Germany, it was fundamental for Georg Wilhelm Friedrich Hegel.Footnote 96 In France, it was the starting point for all subsequent political thought.Footnote 97 Its impact can hardly be overestimated.Footnote 98 In the course of the eighteenth century, Montesquieu's magnum opus was translated into English, Italian, German, Latin, Danish, Dutch, Polish, and Russian and appeared in more than one hundred sixty editions.Footnote 99
Nowhere was the book more important than in the fledgling United States. In The Federalist, James Madison called the author of The Spirit of Laws an “oracle,” and both Madison and Alexander Hamilton spoke of him as “the celebrated Montesquieu.”Footnote 100 They sensed what subsequent scholarship has shown to be true: that no political writer was more often cited and none was thought to be of greater authority in the era of American constitution-making.Footnote 101 They knew, moreover, that in England and on the continent of Europe Montesquieu was thought to be of similar stature. Indeed, having carefully read his Spirit of Laws themselves, they knew why, throughout the Christian West, he was held in such regard; and, though they took issue with him on particular matters, it was within the framework of his understanding of the relationship between natural right and constitutionalism that they sought to articulate a constitutional scheme appropriate to the particular dispositions of the American people for whom it was framed.
There were five passages in Montesquieu that caught the American eye. In his discussion of the national character of the English, Montesquieu alluded to their colonists in North America, noting England's indifference to territorial acquisition, suggesting that, when it did send out colonies, it did so, in the manner of ancient Carthage and medieval Venice, “more to extend the reach of its commerce than its sphere of domination,” and adding that it was apt to confer on its colonists “its own form of government”—which would bring “with it prosperity” so that “one would see great peoples take shape in the forests which they were sent to inhabit.”Footnote 102 This encouraged Americans, such as Benjamin Franklin and Hamilton, to think of the new republic in North America as a successor to England—like it in situation, character, commercial focus, and ability to project power.Footnote 103
The second of these was the passage in which Montesquieu denied that it is possible to sustain a republic on an extended territory, which posed a challenge to the aspirations that animated the nascent republic. This passage was frequently cited by the Antifederalists,Footnote 104 and Federalists responded in three ways. One could observe, as Hamilton did, that states such as Massachusetts, New York, Pennsylvania, Virginia, North Carolina, and Georgia were themselves too large to meet Montesquieu's criterion, and one could point, as he also did, to the third of the passages that drew attention in America—Montesquieu's suggestion that a group of republics could overcome the geographical imperative by forming a federation.Footnote 105 One could also deploy the fourth and fifth of these passages—in which Montesquieu discusses the principle of representation, the separation of powers, and the ongoing struggle between Court and Country to which it gives rise—against his geographical claim, as Madison did, by arguing in a manner reminiscent of David Hume that territorial extension can be of advantage to a republic based on representation and that the diversity of opinions, passions, and interests resulting from geographical extension can render it difficult, if not impossible, for a majority faction to form.Footnote 106
In effect, the Americans hedged their bets by adopting both of Montesquieu's expedients. Faced with the task of establishing a republic on an extended territory, they established a hybrid regime—“partly federal, and partly national”—made up of comparatively small republics,Footnote 107 and they adopted the principle of representation and a separation of powers both within the federal government and within the state governments, fortifying themselves in this fashion against the prospect that the sheer size of the territory encompassed by the United States of America would occasion frequent emergencies that would eventuate in a massive concentration of power in the central government and a massive expansion of the executive power.
In the process, of course, the Americans had to make certain adjustments. The separation of powers in Montesquieu's England was buttressed by the existence of a monarch and a nobility entrenched in the executive and in part of the legislative power. The Americans did not possess resources of this sort, and so, in the absence of juridically distinct orders, they had to construct their system of separated powers at both the federal and state levels on a purely republican foundation. The Americans faced one additional difficulty. Their constitutional order was not a product of the ages. It did not have its foundation in mores and manners. It was a rational construct, and it took the form of a written document. Moreover, the order spelled out in that document was hybrid in form, and it was inevitable that there be conflicts between the laws passed by the national government and those adopted in the states. It was essential that there be a superintending power to adjudicate disputes between the two and to prevent Congress and the state legislatures from acting in a manner contrary to the terms of the Constitution. To meet this need the Framers of the Constitution, after considerable deliberation, opted to establish a system of federal courts headed by a Supreme Court graced with the power of judicial review.Footnote 108 Here, too, the Americans owed something to Montesquieu—for, in his account of monarchy, he celebrated the fact that, in France, the monarch did not himself exercise the power of judging but left it to the Parlement of Paris and the provincial parlements, which were not only charged with interpreting and applying the law but expected to refuse to register new legislation if their members found it inconsistent with the existing body of law—a responsibility closely akin to judicial review.Footnote 109
The deliberations of the Framers and their ruminations on the themes announced by Montesquieu did not end with the Constitution's ratification. In the early 1790s, when Madison began thinking about the political consequences inherent in the ambitious program of economic development charted by Hamilton in his capacity as George Washington's Secretary of the Treasury, he had occasion to reconsider Montesquieu's analysis of the relationship between forms of government and the size of the territory they were suited to govern.Footnote 110 He believed that “a consolidation of the States into one government” was implicit in Hamilton's assertion of federal prerogatives, and he feared that such a consolidation would neutralize the expedients suggested by Montesquieu and instituted by the Framers and leave “the whole government to that self directed course, which, it must be owned, is the natural propensity of every government.”Footnote 111
First, he thought, the separation of powers would give way to centralized administration of the sort that typified despotism. If there was such a consolidation, Madison contended, if federalism was subverted and the national government by one means or another took over the prerogatives of the states and the localities, the legislature situated in the new nation's capital would quickly prove to be incompetent “to regulate all the various objects belonging to the local governments,” and this “would evidently force a transfer of many of” those objects “to the executive department.”Footnote 112
Second, he contended, because the state and local governments are close to the people—in sight and mind, within reach and control—they are the natural instruments of civic agency. If, however, they were to be made dependent on and subject to a national government out of sight and mind and beyond reach and control, the sheer size of the country would stand in the way of concerted popular political action, preventing “that control” on the national legislature “which is essential to a faithful discharge of its trust, [since] neither the voice nor the sense of ten or twenty millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs, through which both can now be conveyed.” In such circumstances, he warned, “the impossibility of acting together, might be succeeded by the inefficacy of partial expressions of the public mind, and this at length, by a universal silence and insensibility.” It was the absence of effective popular checks that would leave the national government to a “self directed course.”Footnote 113
In short, Madison revisited Montesquieu's argument concerning republics and the extent of territory suitable to them. And, at a time when the territory was much smaller than it is now, and the population was not even one-fifteenth of what it is now, he began to worry that the extent of territory encompassed by the United States and the size of its population might be too great. He was, moreover, virtually certain that, if the federal government were allowed to encroach on the prerogatives of the states and the localities, as he believed Hamilton intended, despotism of one sort or another would be the result.
VI. Conclusion
As should be clear by now, it is by no means fortuitous that, in the speeches which he delivered in the course of the 1912 American presidential election, Woodrow Wilson chose to discuss Thomas Jefferson in tandem with the baron de Montesquieu. As Wilson recognized, there is a close kinship between the Declaration of Independence and The Spirit of Laws. One cannot fully adopt the prudential teaching embedded in the latter without embracing something very much like the political doctrine outlined in the opening paragraphs of the former. Nor is it an accident that the Framers of the American Constitution and their critics among the Antifederalists paid such close attention to The Spirit of Laws. One cannot attempt to put into practice the principles outlined in the opening paragraphs of Jefferson's masterpiece without giving consideration, in much the same fashion as Montesquieu did, to the circumstances, constitutional provisions, and legal practices most conducive to sustaining liberty in modern circumstances.
For all of this, as I have tried to demonstrate here, there is a reason. As is well known, John Locke's Two Treatises of Government was the principal inspiration for Jefferson's great effort to explain to a candid world why so many of Britain's colonists had opted for independence and why they were right to do so.Footnote 114 In similar fashion, as I have attempted to demonstrate here, the way of thinking about constitutionalism that Montesquieu bequeathed to the American Founding Fathers was based on an understanding of the state of nature, of objective natural right, and of subjective natural rights fundamentally similar to but not identical with that found in Locke's book.
It stands to reason, then, that, if we want to understand the present discontents, we should take note of Wilson's argument and begin by reflecting on the significance of Progressivism's repudiation of the political principles of the Declaration of Independence and of its rejection of the prudential teaching of The Spirit of Laws. James Madison may well have been wrong about the dangers implicit in Alexander Hamilton's program. Something of the sort was instituted by Abraham Lincoln and the Republican Party in the immediate aftermath of the election of 1860,Footnote 115 and it did not have in the decades following anything like the consequences that Madison feared. But this does not mean that the anxiety inspired by his ruminations on the geographical imperatives explored by Montesquieu was entirely unjustified. In the twentieth century—when, as E. L. Godkin pointed out, Lincoln's beloved Declaration of Independence had come to seem an embarrassment and the Constitution he defended, an anachronism; when a victorious presidential candidate in his campaign rhetoric insisted on dismissing both Jefferson and Montesquieu with disdain as out of date—a gradual and deliberate consolidation of power in the hands of the central government really did begin to take place, and it had precisely the consequences that Madison feared and so abhorred.
In the century that has passed since all of this began, the legislative power lodged within the federal government has proved to be inadequate to the task of managing in fine detail so large and diverse a country. It has transferred to administrative agencies lodged within the executive the power to make rules and regulations that have the force of law, and in the course of a series of administrations that advertised their radical break with America's past by calling themselves The New Freedom, The New Deal, The New Frontier, The Great Society, and, perhaps most tellingly, The New Foundation, the size and scope of the administrative state has become gargantuan. In the process, the state and local governments have become dependent on federal largess, which always comes with strings attached in the form of funded or unfunded “mandates” designed to make these governments fall in line with federal policy. Civic agency, rooted as it normally is in locality, has withered as the localities have lost their leverage, and the civic associations so admired by Alexis de Tocqueville have for the most part become lobbying operations with offices in Washington focused on influencing federal policy, and many of them have also become recipients of government grants and reliable instruments not only for the implementation of federal policy but also for its defense. Moreover, as Madison predicted, to a degree hitherto hardly imaginable, the federal government has assumed a self-directed course in defiance of the popular will.
What we are witnessing not only in the United States but abroad as well is democracy's drift in the direction of what Tocqueville called “soft despotism.”Footnote 116 That Americans still retain at least a remnant of the salutary spirit of jealousy that animated the old struggle between Country and Court was made clear on the first Tuesday in November, 2010.Footnote 117 If, however, they are to succeed in reversing democracy's soft despotic drift, they will have to take the advice implicit in Godkin's lament, recover the understanding of natural right articulated in the Declaration of Independence, and attend to the institutional logic inherent in the species of constitutionalism pioneered by Montesquieu and refined and applied to American circumstances by the Framers of the Constitution of the United States.
