Sunday, January 18, 2015

Montesquieu quoted in Federalist Papers: Separation of powers



This post is the last half of a two-part blog post. To see the first half, click here.



Introduction

During the debates over whether or not to ratify the United States Constitution, both sides in the debate quoted from a French philosopher named Montesquieu. They did so in an attempt to show that their views conformed more with Montesquieu's than their opponents' views did. (This might aptly be compared to different religious groups claiming to have better conformity with scripture than rival religious groups have.)

There were Founding Fathers on both sides of the ratification debates - which could have gone either way, as they were close and hard-fought. But among the ones on the pro-Constitution side were Alexander Hamilton and James Madison, two of the most prestigious. These two men co-wrote a series of articles that we today call "The Federalist Papers," in which they use Montesquieu's name no less than 12 times. This post, strictly speaking, is not about either Montesquieu or the Founding Fathers per se; but about Montesquieu's influence on the Founding Fathers, as evidenced by what these two particular Founders (Hamilton and Madison) said about him in the Federalist Papers.


Title page of the Federalist Papers (first printing)

I have divided this blog post into two parts, because I discovered when writing it that there was enough material for two separate blog posts. The first half (linked to here) dealt with the topic of "confederate republics" (a major source of interest at the time of the ratification debates), and how Montesquieu influenced our Founding Fathers on this topic. The second half (this half) deals with the topic of separation of powers, where Montesquieu did his most famous work; and how he influenced our Founding Fathers with regards to this topic.

Separation of powers

So now to what the Federalist Papers quoted about separation of powers. (All quotes are from Federalist No. 47, except where noted otherwise.)


The Constitutional Convention

Though it seems ironic to hear it today, the Constitution's opponents of this time accused the document of violating the "separation of powers" doctrine - or the doctrine that power should be divided among multiple branches of government. It seems strange to hear it now - the Constitution divides the power amongst legislative, executive, and judicial branches. Why, then, did the Constitution's opponents say it lacked such a separation?


United States Constitution

Mainly, it was because of its system of checks and balances. This might not seem to contradict separation of powers; but if you consider an example of one of them, you'll see what they meant: The president has the constitutional power of nominating judges; yet the Congress has to consent to these appointments. The legislature thus shares in the president's executive power of appointing judges. Can it then be said that the executive power is totally separate? The Constitution's opponents said it couldn't - that giving them checks upon the others' power meant that executive power was being shared, and that the three kinds of power were thus not totally separated. Thus, they argued, the Constitution should not be approved; for a total separation is necessary.


James Madison, one of the chief authors of the Federalist Papers

James Madison begins his response by noting that "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." So let us endeavor, then, "to ascertain his meaning on this point" and see if the proposed interpretation is correct.

Madison starts by noting how much Montesquieu liked the British government; and how he used it as an example of how separation of powers should work in practice. (It may not have been an ideal example, but it was the closest thing that could then be found in the world.) In Madison's words: "This great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty." Thus, it behooves us to look at the British government, to see how Montesquieu envisioned separation of powers to be in practice. If Madison could prove that powers were not totally separate even here, he could then undermine the interpretation of the Constitution's opponents, by saying that Montesquieu's zeal for separation of powers was not as extreme as it was then made out to be.


Parliament of Great Britain

"On the slightest view of the British Constitution," says Madison, "we must perceive that the legislative, executive, and judicial departments are by no means totally separate and distinct from each other." The executive shares legislative power, and can make treaties with foreign nations that have legislative authority. The executive appoints the judiciary (a check on the courts), and can remove them from power (another check) as long as Parliament consents (a legislative check). The legislature is "the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases" (still more checks and balances). The judges "are so far connected with the legislative department as often to attend and participate in its deliberations [another check], though not admitted to a legislative vote [a balance]." Thus, it is quite clear that the powers are not totally separate here.

Madison then gets to the crux of the argument:


Baron de Montesquieu

"From these facts, by which Montesquieu was guided, it may clearly be inferred that, in 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."


Another picture of James Madison

Madison then uncovers an inconsistency in the arguments of the Constitution's opponents, which is to hold up the thirteen states' constitutions as models of separation of power, when in fact they are not totally separate and distinct, either. "If we look into the constitutions of the several States," Madison says, "we find that, notwithstanding the emphatical and, in some instances, 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." Some of the state constitutions explicitly state that none of the three kinds of power can be shared among multiple branches; yet all of them do so through varied systems of checks and balances. Therefore, Madison contends, the Constitution should not be condemned for doing the same - the state constitutions are all in harmony with Montesquieu's doctrines, and so is the proposed federal Constitution. The people have no need to worry about the new Constitution, in short.

James Madison also makes clear that he does not wish to hold up everything the state constitutions do as a model of good government: "What I have wished to evince," Madison says, is "that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America." Baron de Montesquieu, in short, had been misinterpreted; and the Constitution was in complete harmony with his prescriptions.


Alexander Hamilton, the other chief author of the Federalist Papers

The opponents of the Constitution also made arguments based on having too much judicial power, by saying that the courts under the new Constitution would be too powerful. In a later Federalist Paper, Alexander Hamilton gives a response to this argument; and bolsters it with a quote from Montesquieu in a footnote: "The celebrated Montesquieu, speaking of [judicial powers], says: 'Of the three powers above mentioned, the judiciary is next to nothing.' 'Spirit of Laws.' " (Source: Federalist No. 78, footnote) As Hamilton would write in other Federalist Papers, the courts possess neither "the power of the sword" nor "the power of the purse" - they cannot use deadly force, and they cannot tax. Thus, giving lifetime appointments to judges is not something that we need to worry about - the judiciary power is "next to nothing."


U.S. Supreme Court

(That may not be the case today, but it would have been the case if lifetime appointments had not protected judges against other branches' encroachments on their power. Without "the power of the purse" and "the power of the sword," they need some mechanism to defend themselves against the president and the Congress; and what better way than total immunity from being removed - provided, that is, they do not commit a crime? That is basically the argument that Hamilton used.)

So those are all the references to Montesquieu about separation of powers in the Federalist Papers. If you missed the earlier part of this blog post, discussing what they quoted about "confederate republics," see Part 1 here. This post is the second of just two parts.

Do checks and balances conflict with separation of powers?


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