In the post-Constitutional American order of 2013, one hears increasingly frequent reference among everyday conservatives to “the real Constitution.” This entails popular references to the Framers, to the late 1780s, and even to the political-science classics being referenced by the Framers in the late 1780s. One rightly designates it a good thing.
However, a sharp dissonance strikes the attuned ear. The dissonance is born from the erroneous presumptive congruence by these popular accounts between the foremost of such Framers—James Madison—and the paragon of those classical political scientists—the Baron de Montesquieu. That is, when James Madison (with the Federalists) shaped and defended throughout 1787 the document which became our Constitution, he did not follow Montesquieu’s most important admonitions, but rather presumed to “correct Montesquieu” in three cardinal ways. These “corrections” have proven both significant and unfortunate in our republic’s life. Madison should have stayed the Montesquieuan course, as his Antifederalist opponents pointed out at the time.
Popular accounts of this on talk radio—by conservatives with whom one usually agrees—have missed the memo. And the big idea. Recently in my car I heard a popular radio conservative giving voice to precisely this false equation: “Madison read and followed the dictates of Montesquieu.”
No, he did not. After reading Montesquieu’s most important admonitions in Spirit of the Laws, Madison decided that he could outsmart him. The Montesquieuan admonitions were actually limitations on what a well-functioning republic could allow, and thus, be. And Madison got greedy, not wanting to abide by those limitations.
First, Montesquieu required republican governments to maintain limited geographic scale. Second, Montesquieu required republican governments to preside over a univocal people of one creed and one mind on most matters. A “res publica” is a public thing valued by each citizen, after all. “How could this work when a republic is peopled diversely?” the faithful Montesquieuan asks. (Nowadays in America, for example, half the public values liberty and the other half values equality, its eternal opposite.) Thirdly—and most important—Montesquieu mandated that the three branches of government were to hold three distinct, separate types of power, without overlap.
Before showing just how correct Montesquieu was—and thus, how incorrect Madison was—it must be articulated that in the great ratification contest of 1787-1788, there operated only one faithful band of Montesquieu devotees: the Antifederalists. They publicly pointed out how superficial and misleading were the Federalist appropriations of Montesquieu within the new Constitution and its partisan defenses.
The first two of these Montesquieuan admonitions went together logically: a) limiting a republic’s size to a small confederacy, b) populated by a people of one mind. In his third letter, Antifederalist Cato made the case best:
“whoever seriously considers the immense extent of territory within the limits of the United States, together with the variety of its climates, productions, and number of inhabitants in all; the dissimilitude of interest, morals, and policies, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union.”
Then, to bulwark his claim, Cato goes on to quote two sacred sources of inestimable worth: the Bible… and Montesquieu. Attempting to fit so many creeds and beliefs into such a vast territory, Cato says, would be “like a house divided against itself.” That is, it would not be a res publica, oriented at sameness. Then Cato goes on: “It is natural, says Montesquieu, to a republic to have only a small territory, otherwise it cannot long subsist.”
The teaching Cato references is simple: big countries of diverse peoples cannot be governed locally, qua republics, but rather require a nerve center like Washington D.C. wherefrom all the decisions shall be made. The American Revolution, Cato reminded his contemporaries, was fought over the principle of local rule.
To be fair, Madison honestly—if wrongly—figured that he had dialed up the answer, such that the United States could be both vast and pluralistic, without the consequent troubles forecast by Montesquieu. He viewed the chief danger of this combination to lie in factionalization. One can either “remove the cause [of the problem] or control its effects,” Madison famously prescribed in “Federalist 10”.
The former solution (“remove the cause”) suggests the Montesquieuan way: i.e. remove the plurality of opinion and the vastness of geography. Keep American confederacies small and tightly knit. After all, victory in the War of Independence left the thirteen colonies thirteen small, separate countries, contrary to President Lincoln’s rhetoric four score later. Union, although one possible option, was not logically necessary.
But Madison opted for the latter solution (“control the effects”), viewing union as vitally indispensable and thus, Montesquieu’s teaching as regrettably dispensable: allow size, diversity, and the consequent factionalization. Do so, he suggested, by reducing them to nothing…with hyper-pluralism. Madison deserves credit: for all its oddity, the idea actually seemed to work… for a time.
But Madison’s friend and mentor, Thomas Jefferson, ideologically closer to the Antifederalists and thus to Montesquieu—yet willing to entertain the possibility of Federalist union among all thirteen colonies—wrote from France that union was not altogether necessary. Jefferson maintained this position throughout his presidency and his life (even though he committed a mortal sin against Montesquieu via the expansive Louisiana Purchase). He admonished his Antifederalist devotees to listen patiently to Federalist arguments in favor of a vast, single, American union. Conversely, he admonished friends like Madison on the Federalist side (very few!) that the superior form of republic should be elected, irrespective of whether that meant one American union or several confederacies or “one Atlantic and one Mississipi confederacy.” In short, Jefferson suggested that the metric for the course opted for should be that which confers the optimal amount of liberty. How many countries formed was “not very important to the happiness of either part,” Jefferson wrote in 1804. The important thing was maintaining local rule in whichever country/countries were formed by the former colonies.
Madison did not hearken.
Montesquieu’s third and most important admonition was that the executive, legislative, and judicial branches should never share overlapping powers. In short, there ought to be no intragovernmental balances—branch overlaps—only checks—divisions of power. Thus, no executive “veto” (where the president acts the legislator), no Senatorial ratification of executive treaties (where Congress acts as the president), and very limited judicial review (such that the judiciary does not act like Congress, legislating from the bench), to name a few examples. Allowing balances would lead to collusion among the branches, Montesquieu forecast, whereas the goal of good constitutions was to engender rivalry between them. Each branch should do only that which is proper to it: enforce, make, or interpret law.
Another Antifederalist, Brutus, covered this third Montesquieuan ground, advising Madison against “the dangerous and premature union of the President and Senate, and the mixture of legislative, executive, and judicial powers.” In that, his fifth letter, Brutus went on to lament “such an intimate connection between the several branches in whom the different species of authority is lodged.”
But over against these passionate Antifederalist citations, Madison lowered his head and created the balances of Constitutional power named above, casting overboard his Spirit of the Laws, just as he had done with respect to Montesquieu’s first two warnings. Forgivably, Madison thought this would achieve greater restraint on government. Sadly, it had precisely the effect that Montesquieu and the Antifederalists had foretold: the three federal branches used their overlapping powers not against one another, but in league against the several state governments. They colluded, not competed, with one another. And the state governments were largely incapacitated.
Taken together, these three “fatal conceits” of 1787 render the infirm state of the American Constitution to be an unintended consequence that Madison hath wrought. Picking nits with Madison or the Constitution is always unpopular with conservatives. Fair enough. Yet I urge fellow patriots: read the wise voices of the Antifederalists before rendering that determination. Their teaching is the world’s most heavyhanded instance of, “if it ain’t broke, don’t fix it.” This meant you, Madison.
Yet, for all this, James Madison is not directly to blame for America’s current situation, of course. The Marxists (secular progressives) are. Madison was responsible for making unfortunate modifications to Montesquieu’s philosophy, while claiming the banner of Montesquieu speciously.
Although Spirit of the Laws was published in 1748, it was really just an explication of 17th century British political philosophy, applied to a new form of republicanism. In short, Montesquieu articulated a 17th century republicanism. Madison innovated an 18th century republicanism. And Marxism was a 19th century beast.
Republicanism had been mostly dormant since its primordial versions failed in the ancient Greco-Roman world. Mostly, the world had given up on self-rule of either the direct form—democracy—or the indirect form—republicanism—deeming that it simply requires too much virtue out of its “rulers,” the people. One of the few items upon which all Federalists, all Antifederalists, and Montesquieu himself agreed was that representative government required a religious, vigilant people whose foremost interest be the pursuit of the private and public good. (This sounds foreboding to an epicurean American culture whose dominant interests include recreational sex, celebrity minutiae, technology shopping, and dilettante cuisine.)
But in the long span between the imperial turn of Rome and the American Revolution, there did exist a few thriving exceptions of republicanism, footnotes to most history texts: the partly mythic Anglo-Saxon system of pre-Norman self-rule from the sixth to the eleventh century; the Venetian Republic which existed from the seventh to almost the nineteenth century; the Swiss cantons were republics dating back to the defeat of Holy Roman Emperor Maximillian in 1499 and yet existing today. And these exceptions explicitly informed the arguments of Antifederalists like George Mason and Patrick Henry at the state and national ratification debates of 1787-88: Look, Madison, they said, if kept sufficiently small, univocal, and virtuously peopled, republicanism will thrive. But only if…
Republicanism had a new chance in the Framing era, especially given Montesquieu’s political philosophy’s nuances in Spirit of the Laws. Whereas the ancient republics were necessitated (by their direct governance) to be mere city-states, modern theories of representation allowed geographic expansion to the size of small nation-states. Republics, Montesquieu admonishes, still cannot become huge, but representation allows them to be bigger than mere cities. Moreover, the three-branch innovation by Montesquieu (the British system considered the judiciary to be a part of the executive) streamlined republican due process so as to increase efficiency—especially if the three branches are hermetically sealed off from each other.
Thus, we see that the Montesquieuan limitations on republicanism were anything but arbitrary. Rather, they informed Montesquieu of republicanism’s evolution over the course of two or three millennia, with all its cautionary examples.
On a second look, then, Madison’s modification of Montesquieu seems a bit more flippant. It modified a workable 17th Century political philosophy into a wholly new, experimental 18th Century political philosophy.
Montesquieu’s 17th century republican form required small, tightly knit nation-states wrought of religious and moral solidarity. Madison’s 18th century form—relying on his innovations of political culture such as the Senate, factional nullification, national commercialism, and “balancing of power” among the branches—allowed a large, scattered, divided, irreligious republic to form without the consequences predicted by the Montesquieuan Antifederalists. Or so Madison thought.
These problems just took a while to show up, on account of the solid foundation of classical republicanism not taken out of the mix. But show up they did.
Our current American problems are attributable to the slight to moderate overnationalization of Madison’s 18th Century theory (it’s arguable), as cross-fertilized by 19th Century theory: redistributive Marxism. Even though Madison, Hamilton, et al. would never have willingly endorsed redistributivism, they nevertheless endorsed a national government big enough to effectuate it under the right conditions. Whereas the American 19th century bore witness to a sort of playing out of the Madisonian-Montesquieuan hybrid (explaining both the Civil War and the robust states’ rights which survived that long), the 20th shoved Montesquieu out, with Marx replacing him. Thus far into the 21st Century—after eight years of enormously central governing by Bush and in the fifth year of the Obama nightmare—it appears that Madison has been pushed out. No more mongrel. All we see is a descent into outright Marxism.
And that much is not Madison’s fault, in the usual sense of the term.
That is, the pernicious effects of the Fourteenth Amendment, a.k.a. the “new Constitution,” are not Madison’s fault. It was ratified nearly a century after the Framing (illegally… individual research on this point is merited). And in Madison’s carefully balanced federal system, any imposition on either side—however slight or accidental—could grossly change the balance of power between state and nation. More than effectuating minor or unintended change, the Fourteenth was designed to debilitate state governments fundamentally. Out of it grew both the doctrine of incorporation, which now enforced the Bill of Rights against the states as well as the Fed, and the outrageously malappropriated and misunderstood doctrine of substantive due process, which allows federal judges to construe non-enumerated individual new rights (viz. abortion, “reproductive rights,” gay marriage?) from the idea of “due process” and to enforce them against the States. In short, the Fourteenth Amendment allows most of the original Constitution’s vigorous procedural commitments to be bypassed. Hence, the “new Constitution.” Behold the brave, new, post-procedural world of the Fourteenth Amendment, the American Marxist’s best friend.
And true to the Marxist form, federal judges have “constructed” rights only ascribable to its favorite children.
The American Constitutional story is a sad one, cut short prematurely by American secular progressives and Marxists on the judge’s bench. But the entire point of this glance at history—in danger of being missed when one discusses only the Left’s hand in it—is to express that the secular progressives only had occasion to alter the Constitution by the permission of the Constitution itself. Saying such a thing is not quite the same, but not altogether different, from uttering the unassailable idea (as all the popular talk radio conservatives do) that Progressives were the ones who disturbed and changed the Constitutional order.
Of course they were. But one does better to honestly apprise the specific clauses in the Constitution which allowed such manipulation.
This is the point in the ride, sadly, where the vexing anti-scholastic pragmatism of popular conservatives prompts them to “get off board”: “What is the point?” they ask. The point, my myopic friends, is to cease pushing danger’s horizon further and further away, ever and anon, as if the inclement weather be not directly overhead. It be. No, the responsibility of the present is already storming torrentially upon conservatives and libertarians: retrieve the true meaning of the Constitution, already long gone! And while you’re at it, remove the clauses which led to its perversion! One way or another, the Montesquieuan possibility of liberty and federalist governance is retrievable. God willing. But the first step is certainly acknowledgement that Madison was no Montesquiean, as every Antifederalist yelled loudly at ratification, that crucible of forensics which produced the singular document which mostly ignored, but has been ascribed to, Montesquieu.
Books on this topic may be found in The Imaginative Conservative Bookstore. This piece was formerly published as two companion articles on American Thinker: “Madison’s Constitution” and “Madison’s Republic”.