A review of “The United States Constitution” (audiobook)

“[The Congress shall have the power] To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

– The United States Constitution (signed 1787), Article 1, Section 8, Paragraph 18

If one wants to understand the Constitution, there is no substitute for actually reading the document itself, of course. But this audiobook gives historical context that is not available within the document itself. It helps to place the original Constitution into the context of its times, and leaves it to another audiobook to cover the amendments to the Constitution (a subject that I have covered elsewhere).

Some of the credit for “separation of powers” should go to Polybius

“It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. … And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.”

– Alexander Hamilton, in the Federalist Papers (Federalist No. 34)

In the second century BC, there was an armed uprising against the rule of the “Roman Republic,” by an alliance of Greek states known as the “Achaean League.” There had been close military and religious ties between the two groups before this time; but they were soon cast aside in a conflict known as the “Achaean War.” This was a bitter conflict, in which the Romans quickly crushed the Achaean League; to make sure that all of Greece would soon be under their control. Greece was quickly annexed by the Roman Republic in 146 BC, the same year that Rome was laying siege to the city of Carthage in faraway North Africa. When the city of Carthage was finally sacked in the spring of that same year (after three long years of siege), the last of the three Roman wars with Carthage finally ended. The Roman Republic now controlled much of the Mediterranean.

Roman villas built on the site of Carthage

Polybius was present at the Fall of Carthage in 146 BC

One of the men present at the Sack of Carthage was a Greek historian named Polybius, who would later write an influential work called the Ἱστορίαι (“Historiai”), or “The Histories.” This famous work would cover the history of the Roman Republic from 264 BC to 146 BC, and conclude with his eyewitness account of the fall of Carthage in 146 BC. This work was originally written in his native Koine Greek as 40 different “books,” but only the first five of these “books” have survived in their entirety. The rest of these books survive only in bits and pieces, and it is the surviving portion of the sixth book that I will be focusing on today. (This is the book in which he talked about separation of powers in the Roman Republic.) His analysis of checks and balances in this republic that had conquered his homeland would have a powerful influence on men like Montesquieu and Madison. By extension, it would thus eventually influence the United States Constitution as well.

Polybius

How to prevent tyranny: Separation of powers and checks & balances

"The political liberty of the [citizen] is a tranquillity of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another."

- Baron de Montesquieu's "De l'esprit des lois" ("The Spirit of Laws") [published 1748], Book XI, Chapter 6

Montesquieu had some important ideas about how to prevent tyranny (and they're still relevant today)

The U. S. Declaration of Independence owed much to the work of John Locke, the English political philosopher. But the political scientist Donald Lutz said that "If there was one man read and reacted to by American political writers of all factions during all the stages of the founding era, it was probably not Locke but Montesquieu." (Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 190) This is not to deny the importance of Locke, as he was also an enormous influence on the Founding Fathers (see my blog post for evidence of this). Nonetheless, Montesquieu is definitely the author that had the greatest influence on both sides of the ratification debates, and perhaps even on the finished product of the United States Constitution itself. He's almost like a Founding Grandfather of the United States, his influence is so strong. This is why I recently finished reading his most famous work "De l'esprit des lois" ("The Spirit of Laws") in the original French. He was a Frenchman, who wrote his most famous work in 1748 - a book written over a quarter of a century before the American Revolution. This book was one of the most important influences on the Founding Fathers.

Baron de Montesquieu

How to prevent bad government: Keep any one group from getting too much power

Montesquieu is probably best known today for his important theory of a separation of powers in government. Put briefly, this theory is the idea that bad government is best prevented by keeping any one group from getting too much power over the others. James Madison referenced this danger in the Federalist Papers by saying that "the 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." (Source: Federalist No. 47) Hence, the need for a system of government that divides up these powers as much as possible. This is something that the United States Constitution does by dividing up this power into three branches of government - the legislative, executive, and judiciary. The legislative branch makes the laws, the executive branch enforces the laws, and the judiciary branch judges and interprets the laws, with as little overlap between these three kinds of power as possible. (More on that in a separate post - for now, I will confine myself to talking about the specifics of the theory, at least in basic form.)

5 limits on presidential power that you never heard of

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

- Thomas Paine's "Common Sense" (1776), Chapter III

Impeachment is not the only limit on the president's power

"What's the difference between a president and a king?" This is a question that Americans sometimes ask themselves, and we usually conclude that there are major differences between the two (or at least ought to be). But if you had asked this question at the time of the Constitutional Convention, many Americans would have feared that there wouldn't be much difference between the two under the new Constitution. They might have said that it was too much power to give to one man (like the president), and that powers might be best confined to a larger body like the Congress. They eventually came around to see the presidency as a necessary institution despite these potential hazards, but they still worried greatly about executive power. Moreover, they were wondering how the Congress could check (or stop) the power of the presidency. The most obvious example of a legislative check on the president is the Congress's power to impeach the members of the executive branch - and, most importantly, the president himself or herself. But this is far from their only check on the president's power, since there are a number of others to be found in the Constitution, if you know where to look for them. I will be spending this post discussing just five of them.

King George the Third, the monarch that the American Revolution was (partially) fought against

The tyrannical police state: The worst nightmare of the Founding Fathers

"A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

- Article 4, Section 2, Paragraph 2 of the Constitution

Headquarters of the United States Department of Justice, or "DOJ"

Although the president enforces the laws, they can't punish people without the courts ...

In our Constitution, it says that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States" (Source: Article 2, Section 3). This includes prosecutors and police officers. Many of these laws to be "faithfully executed" authorize particular punishments for various actions, from fines to imprisonment to being executed (depending on the seriousness of the offense, as perceived by the Congress). If the president had carte blanche to enforce these laws passed by Congress, with no limits to this power, he could carry out these punishments anytime that he said these laws were violated - or even at times when they were not. (If, that is, there were no judicial branch to check this power, and require him to prove that these violations actually happened as he claimed they did.) Thus the Constitution created a judicial branch that was as independent as possible from the President and the Congress, so that no one group would possess the power to enforce these laws at their own whim or fancy. This is one of the real bulwarks of our Constitution, and is one of the true guarantees of our liberties. Thus, I wish to spend some time on it in this post, and educate us all about our constitutional rights as American citizens - particularly those found in the Bill of Rights.

Supreme Court of the United States

... so the very existence of the court system is itself a check on the presidency

Specifically, the Constitution said that "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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." (Source: Article 3, Section 1) The courts have a certain power to strike down laws passed by the Congress, which is another important power that I should note (at least in passing) before moving on to my main topic, which is judicial restraints on the president and the police force. (I discuss striking down laws in some detail in one of my other blog posts, if you're interested in that subject. This post, by contrast, will be more focused on the Bill of Rights, and on the judicial checks on the executive branch.)

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

The United States Constitution: The secret of America’s success

Great Seal of the United States

As I set out to write a general post about the Constitution of my country, I have the problem of any writer who speaks to a general audience: I speak to those familiar with my culture (including many fellow Americans), and those who know it not at all (since the Internet knows no political boundaries). Even when speaking to fellow Americans, I write to fellow adults who have the power to vote, to a rising generation not yet blessed with the opportunity to participate, and perhaps even to those yet unborn, who will run the country in a distant future. I speak to those who know these things now, to those who once knew these things (but have since forgotten), and to those who never learned them at all - often because the educational system failed to teach them the things it should have; and who, through no fault of their own, have never had the opportunity to hear the message of the Constitution.

A replica of Independence Hall, which is not surrounded by
high-rise buildings (that don't belong in the period) the way the real one is today

In talking about it, I would be remiss to leave out that it is the greatest success story of the United States; and may well be the greatest secret of its more than two centuries of uninterrupted democratic success - the reason for its current greatness. I will try to be (at least somewhat) brief, that I might not burden the audience with an excess of words and analysis; but I will try to be thorough as well, that I might not leave out anything that is essential to why it has worked as well as it has.

Interior of Independence Hall

An overview of the American federal courts

"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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

- Article 3, Section 1 of the Constitution

The part here about "good behaviour" is effectively a lifetime appointment, since it means that the judges can hold their offices for life unless convicted of a crime (which is fairly rare for American judges, possibly because of their being subject to removal in this way). Just as the executive branch is subject to impeachment, so is the judicial branch; and judges can be removed by the exercise of this power. (More about that here.)

Alexander Hamilton

De facto lifetime appointment

The de facto lifetime appointment here is among the most criticized parts of the Constitution, but was defended by the Founding Fathers as making them independent of having too much influence from the other branches (which could erode the separation of powers). It also makes them independent of the popular prejudices of the people, who might otherwise have the power to retaliate against those who enforce laws against them - even when those laws are just and have actually been broken by the people who were judged against. In the words of Alexander Hamilton in the Federalist Papers, "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments" (Source: Federalist No. 78) This is why Hamilton correctly quoted Montesquieu as saying that "Of the three powers above mentioned, the judiciary is next to nothing." (Quoted in footnote to Federalist No. 78) Hence, the radical mechanism of a de facto lifetime appointment, to protect against the improper influence of the other branches.

Supreme Court of the United States

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.

Montesquieu quoted in Federalist Papers: “Confederate republics”

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. This part is the first half, dealing 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 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.

Do checks and balances conflict with separation of powers?

"The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."

- James Madison, in the Federalist Papers (Federalist No. 51)

Some accused the Constitution itself of violating the "separation of powers" doctrine

It might seem strange to hear it today; but during the debates over whether or not to ratify the Constitution as the "supreme law of the land," it was said by the Constitution's opponents that it violated the doctrine of separation of powers - or the idea that power should be separated among multiple branches of government. (For more on the basics of what this is, see this other blog post of mine. This post will focus more on the idea that the Constitution violates it, and how the Father of the Constitution responded to this charge.)

United States Capitol

Why did they think this?

How could this be, you might be asking? We have three branches of government - a legislature, executive, and judiciary - which are separate from each other. The power in our nation is divided between three branches of government, thus maintaining a proper separation of powers between them. Yet there is one aspect in which the Constitution's opponents were correct, which was that there was a system of checks and balances between the branches. This might not seem to conflict at all with separation of powers, but consider an example to illustrate: The president has the power of nominating judges to the Supreme Court, but he cannot actually appoint them unless the legislature approves his choices. Thus, both the executive and legislative branches share in the judicial power by deciding together who gets to wield it. Thus, it cannot truly be said that the powers are totally separate. A similar analogy could be made for every check and balance that the Framers gave us; showing that in practice, the legislative, executive, and judicial powers are shared amongst the three branches.

James Madison

Response from the Father of the Constitution

So is it true that the Constitution violates the separation of powers doctrine? Well, perhaps not - James Madison said that some deviations from the letter of the doctrine are necessary to preserve the spirit of it. He doesn't use those words exactly; but he does address it in some important writings about the Constitution, which are the Federalist Papers. He describes in some detail how checks and balances are necessary to have a separation of powers. His arguments are instructive to those of us who've ever wondered whether checks and balances conflict with a separation of powers. Thus, I will now turn to his words to explain how they are not only consistent with separation of powers, but necessary to preserve a separation of powers in practice.