A DISCURSUS ON THE SOURCES OF THE AMERICAN FOUNDING [1]

By

W. B. Allen

Harvey Mudd College

Claremont, California

Scholarship which treats of intellectual influence rather than presence resembles the dog that sniffs out the wrong scent –it gives a good chase but ends the hunt nobody knows where. The problem assumes an easily articulable form: It is not possible to ascertain with any precision whatever either the degree or the direction of antecedent influences on the reflections and deeds of rational beings. The reason for this stems partly from the preliminary necessity that we first understand our subjects as they understood themselves (whether we consider ourselves historians or theorists) and, although they may give ample testimony to the place of the works of other thinkers in their reflections, we are without recourse to determine why they regarded the principles of those whom they read or heard in precisely the light they did. If this principle be doubted, let the hardy soul who contradicts it untangle the following passage from John Adams’s Defence:

Machiavelli was the first who revived the ancient politics. The best part of his writings he translated almost literally from Plato and Aristotle, without acknowledging the obligation; and the worst of sentiments, even in his Prince, he translated from Aristotle without throwing upon him the reproach. Montesquieu borrowed the best part of his book from Machiavelli, without acknowledging the quotation.

May I not hold, therefore, that while the question of who or what influenced John Adams’s soul is hopelessly obscured within the reason of his principles, we nevertheless have evidence sufficient for the conclusion that the claims of Machiavelli, Plato, Aristotle, and Montesquieu (to confine ourselves to the quotation) are profoundly present—we might say accounted for—within those principles?

This model I shall apply in the broader discussion which we undertake. I intend to proceed by way of a review, first, of a few principles and tendencies, which were concededly present in the thoughts and deeds of the colonists and rebels. This I shall do in order to define more narrowly the possible range of influences which developed in the eighteenth century. Next, I will identify that principle which stands most in need of being accounted for, to the extent that it has at best an obscure history if not the appearance of originating ex nihilo. Finally, I shall discuss that principle insofar as it may be discovered in the work of Montesquieu (along with Montesquieu’s relation to continental thought in general). In order to situate this argument on the firmest ground, however, by way of prolegomena I shall follow the hint of John Adams and discuss the status of that moral skepticism which one finds in the Declaration of Independence in light of the war between the Ancients and Moderns.

We have reflected too little on at least one aspect of the Declaration of Independence. Given the centrality of that aspect in the comprehensive significance of the American founding, this is surprising. The neglected truth at the core of the Declaration, and of the founding, is that moral skepticism which authorizes the prescriptive force of the axiom, all men are created equal, and its deduction, that legitimate governments derive their just powers solely from the consent of the governed. While these principles are founded in the laws of nature and of nature’s God, not even God may be conceived to provide forms of government for men by any agency other than their particular consent. I call this a form of moral skepticism not, however, on account of any imagined limitation on God, but rather on account of the limitation it imposes on man.

To understand the central deduction of the Declaration as a form of moral skepticism, we need do two things. First, we need abandon the notion that moral skepticism is somehow in opposition to morality. More anon. Secondly, we need to situate the claims of the Declaration amid earlier, comprehensive claims about the human condition. We may truthfully say of the Declaration what Montesquieu said of his life’s work: in order to comprehend his political [philosophy] we need to compare it with that of Plato and Aristotle. Plato and Aristotle, first in writing, raised the question of morality and wisdom in human politics. They did so in such a way as to make clear beyond every haggle that all laws point to an independent standard of right, however defective they may be in fact. Where the end of law or politics is right, the deduction seems unavoidable that law or politics is legitimated in direct proportion to its approximation to right (including even the asseverations of Plato’s Crito).

It is an intellectual common place that Machiavelli (despite Neville’s stalwart defense) sundered the ligature between politics and right. This set up the war between the Ancients and the Moderns. Paradoxically, however, this idea both fails to do justice to Machiavelli and obstructs our vision of the true grounds of genuinely modern (which is to say, American) politics. The injustice to Machiavelli stems from the fact that the common judgment is superficial; it conceives that Machiavelli became indifferent to right. This way of understanding fails to note that Machiavelli cared even more about right than about politics. His charge against the ancients amounted to the case that they had enslaved right (or truth and wisdom) to politics, to the disservice of truth and wisdom.

How was this done? The junction of politics and right eventuated in clear recognition of distinctions among men—those who were capable of penetrating the human things from those who could aspire no higher than salutary opinions (the last, in point of intellectual aspiration, no better off than the viciously or vainly deluded, although incomparably superior morally). It was then the differences in men, in their equipment, which the ancients recognized and which Machiavelli completely accepted. Because Machiavelli regarded this as the most important human matter, he did not see himself as breaking with the ancients in the most important regard. By the same token, because he saw that the ancients recognized these distinctions, yet seemed to persevere in making the best men subservient to the end of politics, he regarded their achievement as manifestly inequitable. He then opposed them, not merely to save the best men from having to bow before ordinary virtue but also to emancipate the best souls, philosophical souls, from an enterprise which could indeed eventuate in decent, republican order for human beings but could never attain justification before the tribunal of reason. Charity, or a turning away from the beautiful, could render mankind equally tranquil, without imposing on the more important labors of philosophers.

In summary, the moral problem stands thus: Because the law wishes to be reason (Plato), those who are or may be wisest incur special obligations to cast the law in an appropriate mold. The question, Who shall rule?, comes to be cast in the form of a question about the best capacities to realize the intent of the law. Before political philosophy, many other titles to rule were admitted, among them virtue, substance, age, free birth, and might. After political philosophy, reason or wisdom seems the only just title to rule, Further, titles to rule increase in importance to the exact degree that distinctions in men eventuate in the deduction that some needs must be ruled. There were distinctions in men prior to political philosophy. The antecedent distinctions, however, whether founded in custom or religion, could not sustain the inquiry of political philosophy, and then only virtue and wisdom effectively remained (the former having been largely assimilated into the latter). Legitimate governments, then, are governments in which good men, self‑governing men, rule. From a standard of right inherent in but beyond the city, we had arrived at a morality prior to politics, and in the name of which politics could be shaped. The ancients admitted distinctions in men; Machiavelli did too. The ancients saw the end of rule, wherever good rule was possible, to produce self‑governing citizens. Rule was for the sake of the virtue of the citizens. Ancient thought ended where it began. Here Machiavelli drew the line: The rule of the best aimed to obviate the problem of virtue as an obstruction to the exertions of the best. Galileo par excellence, and indeed all modern scientists who have wanted to be free to think without regard to political constraints, are the fruits of the Machiavellian revolution.

We can see in the war between the Ancients and the Moderns, therefore, what has the look of moral certainty, their contrary practical deductions notwithstanding. The Machiavellian revolution produced a crisis; namely, it tied the best men still more closely to political life but without supplying a ready articulation of acceptable political means. Since ruling had become decisively instrumental and had no proper end which could shape appropriate means, men had to seek new modes of expression and institution to guide their exertions. Several principles were adumbrated, including substitution of a beginning (state of nature) for a proper end, but ultimately a single device won general acceptance; namely, consent (in which even Hume concurs, though in a special way). Consent was needed insofar as any other mechanism implied a species of moral persuasion, hence, ultimately, tutoring in virtue (even if specious). Consent now became (not what it was for Aristotle, decisive in a good regime, but) decisive for politics altogether, for there was no end which would otherwise assemble men. Men who were not going to end self‑governing could hardly commence in search of that vanity.

This was not yet the consent of the Declaration, although the practical and theoretical antecedents of that document are frequently and promiscuously taken as saying the same thing. The main difference: in most, and almost all early antecedents, men consent rather to the fact of government than to its form and powers. This is still true in Locke, for whom the whole consents to a government and the majority establishes it. The precise application of the Declaration’s principles is thus obscured. What we confront in the Declaration is the identical question which animated Machiavelli’s dialogue with the ancients: Who has just title to rule? The answer in the Declaration is that the least shall rule (insofar as the many means the least). That is, by the time of the Declaration, there were no longer any reservations of any sort recognizing the priority of the best. I say this more simply than it is in fact. The Declaration is not an anathema against the best. Their hard won liberation was not to be retracted, and neither were they to be exempted from the spirit of serious obedience to (and therefore interest to participate in forming) the laws which would eventuate. But the principle of equality in the Declaration was a direct response to the earlier recognition of distinctions in men respecting titles to rule. The claim that no one man was constituted by nature the ruler of any other amounted to a denial that any of the superiorities among men could answer in themselves to determine the foundations of polity or morality. Conceded wisdom, virtue, or inspiration deserved deference (as the reason of a candid world deserved), but not to the point of interposing the will of such a superior to that of any other man whatever.

The Declaration’s consent reposes on natural right and reason, without for all that conceding that any one voice of reason would have title to order human affairs. The Declaration imposes moral persuasion as the only legitimate ground of polity. It takes men as commencing self‑governing (however errantly) and makes that the comprehensive moral foundation of political life. It is a skepticism not about morality, per se, but about the status to be accorded all competing moral claims, even true claims. It were as if the founders believed that the greatest human good were inaccessible, save by the labored repetition in every instance of the process from birth to maturity. Because all know the vulnerabilities of infancy and childhood, the question the Declaration raises is, What form of polity can incorporate such weaknesses and yet perpetuate its virtues? That question appears only speciously difficult, however. For, if Socrates’s dog can be philosophical enough to discern friend and enemy, we must certainly say no less for the least of men.

II

Of the many concerns which affect this discourse and influenced the founding, one must certainly be the idea of republicanism. The idea was not born in the minds of the colonists all in an instant. It was developed and matured over a period of many years, beginning at least as early as the Pilgrim’s departure from Delft Haven, where Pastor Robinson admonished due attention to a civil constitution founded in consent. Its decisive turn, however, perhaps begins with the Massachusetts “Body of Liberties’” ambition to reconcile social and political contradictions within the polity, to assure one justice for all of whatever class and whether within or without the communion. That ambition, of course, had animated breasts other than the American. Never before, however, had it constituted so vital a practical goal as it was to develop into in America. In that light, the idea of republicanism is best seen in the context of the idea of the mixed regime. The latter was the clearest antecedent conception of the goal to render a polity immune to social and political contradictions. As its name implies, however, the mixed regime was always conceived as a device for holding distinct, irreducible elements in a stable, compound relationship.

The history of republicanism, well into the eighteenth century is largely the history of the mixed regime. The classical praise of British republicanism is largely praise of the superior virtue of a mixed regime. What precisely is a mixed regime, and why was it taken for so long as the model of republicanism? In simplest terms, the mixed regime is a regime compounded of the two chief classes in every community, the few and the many, the rich and the poor, or the well born and the free born. Eventually the idea of a third element, an independent magistrate whose fortunes were tied to the state as a whole, crept in. The essential, however, is the class distinction. The mixed regime, therefore, was a device to eliminate warfare between these antagonistic classes and thus to free society from the cycle of regimes in which competing and unforgiving classes alternated in their mutual depredations on one another. According to mixed regime theory, by compounding sovereign or ruling authority from elements of both classes, founded in a large middle class whenever possible, peace could be maintained between them. This came to be identified as republicanism because it seemed to fulfill the desire for a stable constitution in which all the citizens participated but yet was not subject to the unchecked sway of the democratic majority. It was, emphatically, representative only consequentially, not by intent. The point was to facilitate rule by the whole community of citizens united in friendly intercourse. Only the practical impossibility of forging an arrangement to accomplish this without representation imposed that device as a necessity.

The American idea of republicanism was always something different, the confusions of John Adams to the contrary notwithstanding. Although the structures of government borrowed much of their form from the British parent, the ambition to eliminate social and political contradiction looked toward not a compound but a homogeneous polity—a resolution not in the government but in the society itself. Early on, class distinctions were regarded as adventitious; perhaps, as has been frequently commented, the elements of real class distinctions (the slaves aside) were not present in America. Thus, the forms of government have been oft attributed to “accident” more than to any theory, as in Charles Francis Adams’s comment that Robert Keayne’s lawsuit with Widow Sherman regarding the ownership of “a stray sow” led to the division of the American legislature into double chambers. [2]   Apart from such accounts, and by the time of the founding, it emerged clearly that the form or structure of government was the secondary element of republicanism. The primary element was the vision of a polity in which no adventitious titles would determine the question of ruling. Republicanism had emerged not only as a device to prosecute peace between warring classes, but as a way of life in which those distinctions would lose fundamental political significance.

III

Old or new, republicanism existed under a cloud. Foremost, men thought the republican regime to be incompetent for many important purposes of state. True homogeneity in the polity, for example, seemed to demand a circumscribed territory and population, admitting relatively little diversity of occupation and therefore little opportunity for diversity of interest. Further, the very equality of such a polity would mitigate against the tendency to defer to magistrates who required to act in emergencies of state for purposes of security. And, although the citizens would be more likely to act the part of fervent patriots, they would not infrequently meet with such odds as they could not prevail against.

With respect to the government of such a polity, even if it did sustain all the virtue it needed to rely upon, the role of the many in the government would expose it to the influence of folly in its deliberations and judgments. This argument was far the more telling. For, gloss it as we may, republicanism quickly came to mean for Americans little beyond democracy (at least in institutional terms). They continued to prefer the term republic largely because they continued to believe that they had augmented democracy (or popular government) beyond its generic roots. Still, the limited provisions for freehold and similar suffrage qualifications could not gloss the fact that an unseemly large proportion of the population, on any ordinary calculation, could exercise the sovereignty. None of the Americans believed human nature to be different than it was previously regarded. Accordingly, they had to place their hopes in new influences on man, if they were to succeed to avoid erecting a polity on a foundation of folly.

They came up with several devices, which received successive improvements up to the point of the consummation in the founding. Their tutelage sprung most to life in the era of the revolutions in Britain, borrowing both from the theoretical and practical examples of the English republicans of all stripes. Foremost was the device of constitutionalism. This came to mean far more than an enabling charter, with which mankind had already some experience. Constitutionalism meant precisely the subordination of the polity to predetermined terms of association and exercising of political power. In this the Americans agreed with the formulation so clearly expressed in Blackstone’s Commentaries. [3]   By comprehending all individuals in “absolute” guarantees of rights, and by restraining the powers of government in areas thought most subject to abuse, they aimed to remove the source of the concern with rule by the many. The instructions from the Massachusetts General Assembly to their British agent, Jasper Mauduit, in 1762, state the matter clearly, drawing upon the highest authority:

Our political or Civil Rights will be best understood by beginning at the Foundation, “The Liberty of all Men in society is to be under no other legislative power but that established by Consent in the Commonwealth, nor under the Dominion of any Will or Restraint of any Law, but what such legislative shall enact, according to the trust put in it.  In General freedom of Men under government, is to have standing fundamental Rules to live by, common to every one of that Society, and made by the legislative power erected in it; a Liberty to follow my own will in all things where the Rule prescribes not, and not to be subject to the inconstant, uncertain, unknown arbitrary will of another Man; as freedom of Nature is to be under no Restraint but the law of Nature.” [4]   This Liberty is not only the Right of Britons, and British subjects, but the Right of all Men in Society, and is so inherent, that they Can’t give it up without becoming slaves, by which they forfeit even life itself.

Such fundamental principles not only erected bulwarks to tyranny, ostensibly, but also to improvident legislation by the legitimate voice of the commonwealth. So much was at least the design, re‑enacted in colonies other than Massachusetts.

The leading aspect of this constitutionalism, after the express guarantees, was the separation of powers. This device would serve to moderate the processes of government but also to ensure due deliberation and, therefore, further to defend against folly. The initial versions of the separation of powers bore strong resemblance to its British antecedents. Like them, it aimed to ensure accountability, the impartial rule of law (without respect to class), a balance of governmental power, and legislation in the common interest. Through this, and the foregoing limitations, republicanism was conceived as a safe approach to governing.

IV

Not every question had been answered by the initial theories of republicanism. Two of these were important. One had to do with the role of virtue in the polity. Would it be the task of the government to inculcate virtue in the citizens? The initial tendency in America was to answer, yes. But, as the foregoing argument suggests, that position becomes more untenable to the precise degree the republicanism becomes more uncompromising. Secondly, we have assumed forms of representation in discussing the government. To what extent is representation necessary? To what extent is it preferred?

The question of representation involved the problem of sovereignty. From the beginning, for ancients and moderns, the important question is the same: Who shall rule? That is the problem of sovereignty, for the lodging of sovereignty is nothing less than to answer, Who shall rule? Further, the lodging of sovereignty, by identifying the social tendency or claim which shall prevail, identifies the characteristic or inclination of the regime. Where only the wealthy possess ultimate authority, for example, there you will have an oligarchy. There, wealth and all associated with it not only will be praised above other virtues, but more importantly will be the unique unaugmented claim to civil honors and rewards. Where, on the other hand, the logic of numbers (to use James Wilson’s term), or mere humanity, is the unique unaugmented claim to civil honors, there ultimate authority must rest in the hands of the people. It is far easier, however, to see how the wealthy, who are few, will exercise their power. The many, by contrast, cannot come at it so easily, and the larger the polity the greater the difficulty.

Should representatives of the people be chosen to exercise their sovereignty, how can the representatives be prevented becoming a privileged, distinct class on their own? How can they be prevented ruling in their own interest, even if in the name of the people? We are so habituated to the resolution of this difficulty, we can hardly imagine a serious question on the subject. It seems merely a matter of expedience to choose representatives, to check then as intimated above, and perhaps to add such provisos as limited tenure of office and maybe even recall. To repeat, though, the majority seems to do almost nothing easily. They can no more easily intervene to correct a system gone wrong than to operate it themselves in the first place. It is no surprise that Locke, Blackstone, Hutcheson, even the Americans themselves, and most anyone who had ever thought about the question, concluded not only that representatives were necessary, but also that there could be no ultimate recourse against them. They did not only legislate; they sustained the constitution. It was entrusted to their hands and could not be recovered, save by violence. All affirmed this right of revolution, a messy one too, as the only recourse of the true sovereign, the people, once the putative sovereign, the representatives, had ceased to satisfy.

The Americans, who could reasonably have had considerable respect for the messiness of revolutions, found this result ultimately unacceptable. In part, it proved unacceptable because it suggested that the idea of escaping the cycle of regimes was only an illusion. This certainly formed the burden of Washington’s exertions in the period between the end of the war and the adoption of the Constitution, highlighted in his correspondence with the would‑be revolutionary, Colonel Nicola. If those who “held” power could at length be displaced only by violence, how would that situation be distinguished from what the few and the many had always done to one another? In fact, the so‑called cycle of regimes had always been a cycle of constitutions, as Aristotle made clear. Indeed, the very term, regime, is only a translation of the Greek, politeia, which we also translate today by “constitution.”   If the ambition to eliminate social and political contradictions meant anything at all, it had to mean establishing a constitution which could weather the changing fortunes of men, under which (and under the influence of which) every disappointment could be accommodated and every regime‑threatening infelicity eliminated, at least in principle.

        The Americans responded by constitutionalizing the right of revolution. They did so in two ways. One was to give a radically new thrust to the meaning and purpose of representation. The aim was to assure that the representatives would in fact speak with the tongue of what Madison identified as the just majority. Thus, the opportunity for a divergence of interests between the people and their representatives was greatly minimized, and with it occasion to revert to a “will independent of the society.” Secondly, they constitutionalized the right of revolution by denying the government as such custody of the Constitution. While the amending procedure does indeed repose on institutional authorities and procedures, it does so in such a way as to distinguish acts of amendment from acts of legislation. Accordingly, the representatives cannot ordinarily change the Constitution while, at the same time, if there were overwhelming sentiment in favor of change in the people, the representatives could scarcely resist it. The degree of popular fervor required to amend the Constitution is probably no more and perhaps somewhat less than would be required for a revolution. Accordingly, the right of revolution (as extra governmental) has been rendered as nearly superfluous as may be.

This marked departure from most precedent and historical example seems to have distinguished the Americans. It was an original, creative act inspired by the determination to comprehend as far as possible all just political alternatives within a particular regime. The first hint of such a possible arrangement emerged in the ad hoc provisions for prosecuting the Revolution itself, and debates about the degree to which acts taken in the name of the people required the impress of their express consent. Imperfect realizations appeared in the initial constitutions, and the critique of the Articles of Confederation led to the ultimate development. Thus, they may be said to have worked it out themselves. There is but one exception which I can find to this portrait, the possible influence of Montesquieu.

V

When we search for intellectual influences we are highly prone to lose ourselves in mazes of citation and confutation. I take the reason for this to be the peculiar piety of intellectuals, their inability to do much else than bow before shrines of authority. This habit renders them peculiarly inapt to discuss the most important political questions, which often demand hard‑headed independence of judgment. By the same token and ironically, however, we live in an era in which those most ordinarily entrusted with political deliberation bow before the shrines of the intellectuals. Without that certified stamp of approval, they are reluctant to trust their native capacity to distinguish friend and enemy. Thus, we find the wise but timid attempt to lead the brave but uncertain. The former seem to be of useful influence, then, only when they stumble by happy accident upon the authority most approximating to current necessity.

The founder’s experience with Montesquieu was of a different character, whether because he was not an intellectual or because they were not uncertain. Daniel Mornet helps us to understand why this may have been at the conclusion of his discussion of the influence of Voltaire (who was an intellectual):

Il faudra l'Esprit des Lois pour que le gout des discussions politiques se vulgarise. [5]

The founders would probably have understood this more readily than we may. There is no longer any question of the rule of the best men in Montesquieu. The best minds in the new city will think all by themselves and sometimes even feel resentful because not receiving the attention they think they deserve.  This vulgarization of political discussion, bringing it within reach of the common mind, may have something to do with the American breakthrough. For that breakthrough is predicated on the truth of those claims that political principles, as questions, can be addressed to the common mind. It was certainly a conception very near this which underlay the appeal of the First Continental Congress, which drafted the Suffolk Resolves and also the important appeal to the Citizens of Quebec. The Americans wrote to the Quebeçois in French, and quoted at great length from their “illustrious countryman,” Montesquieu, in an effort to bring them into the struggle to found a new and cosmopolitan regime. The vulgarization of political discussion has a lot to do with its universalization.

Montesquieu first, so far as I can tell, articulated principles of republicanism in which both the need to inculcate virtue and the requirement of an institutionalized sovereignty were explicitly abandoned. In the “Defense de l'Esprit des Lois,’ he plumed himself on public recognition of his achievement:

Tout le monde convient en Angleterre que personne n’a plus ni mieux conbattu Hobbes que moi, et Spinoza aussi.

What was wrong with those systems, according to Montesquieu, was that they made all virtues, vices, religion, and morality dependent on “laws that men make for themselves.” Although he conceded in his portrait of the ancient republic that man can so make himself, Montesquieu insisted not only that this involved unremittent war against nature, but that it was not necessary.

Constitutions, Montesquieu claimed, could take men from the hands of nature (not the state of nature, but men’s “natural bent”) and accomplish all that is needed in the way of decent or moderate republican life. What was necessary was to satisfy them in their liberty and to crown their modest exertions in behalf of their interests with success. They would respond, he held, by obeying the laws and defending the republic with patriotic exertion. How Montesquieu expected to achieve this end is a story exceeding the scope of this discussion.  I wish, instead, to focus on the two elements of the theory which the founders regarded as most significant; namely, small versus large republic theory and the separation of powers. Before I do even that, however, I must mention an element of Montesquieu, which may help to explain the direction of his thought.

Unlike most of his English counterparts (Scottish thinkers like Hutcheson and Ferguson excepted), Montesquieu, like other continental thinkers, strikes roots deep in Roman law. The difference this might create is a difference of emphasis, but an important one. Central to Roman regime questions was the notion not of rights but of power, potestas. It is true that power was an important term for Locke also. But Locke focuses more fully on rights than power, and indeed subordinates the definition of power to that of rights. Frances Hutcheson, who follows Locke on rights in most details (and cites him to show it), nevertheless also has a fixation on power much like that of Montesquieu. The goal in each case is so to define power as to limit its abuse, quite apart from any consideration of rights, this seems to stem from Montesquieu’s appreciation of the nature of the conflicts in Rome—as between Marius and Sulla—as being less concerned with and deriving from disputes over Roman liberties than inhering in grossly uncertain characterizations of power and the ends it was to serve.

Montesquieu began with the notion of the civitas, defined by Coulanges as “un état organisé et souverain.” Hutcheson, also a student of Roman law, also gave a separate station of pre‑eminence to power. Thus, his discussion of rights, unlike Locke’s is almost wholly separable from his discussion of power. The former is the practical expression of human nature, while the latter is more the expression of the practical limits of social life. Accordingly, one finds in Hutcheson, and the theory of benevolence, a theory of the positive state, a Roman theory, more nearly akin to the materials with which Montesquieu worked. Power, as opposed to rights, comes to the fore of political inquiry to the precise degree that the polity is conceived as the ultimate (as opposed to necessary) condition of human happiness or well being. The identification of power and right, as obverse and reverse of a single coin, and which seems to have achieved its ultimate expression in Locke, seems to originate more certainly in traditions—non-Roman traditions—of English law. The 1646 case of Robert Childs in Massachusetts illustrates this quite well, as also the Petition of Right in England’s case. In Childs’ case, the limitation of power was itself the form which the expression of right assumed; thus the positive duty of the polity to assure “life, liberty, and estate” had already been transformed into the theory of the negative state—the state which through its own exertions (or power) would not interfere with the rights of citizens (individuals).  For Montesquieu, however, the focus on potestas led to principles of checking and balancing of political power, not because he had explicit recourse to rights, but because of the radical re‑appraisal of the ends of the polity. The end of self‑government required self‑renunciation before the claims of the polity in Rome (as in the execution of one’s own son). Not only was this seldom achieved as Rome grew (Montesquieu’s Book XI concludes by examining Roman kingship), but Montesquieu understood it as a contradiction in terms. The state which would avoid that contradiction would take liberty as its end (a positive conception still), and therefore itself renounce those powers violative of liberty. But this could be done only in moderate governments, or, as he meant, through the constitution. The constitution must  exclude all those opportunities theretofore used by one regime or another to aggrandize its power. In other words, Montesquieu generated a positive conception of politics (as distinguished from the state), in which the power of the state would be measured to the appetites not of the governors but of the governed.

This general continental focus on power (the “absolute power” of Louis XIV) seems to have inclined them to seek out elements of human community, anthropological elements, if you will, which could serve as buttress against the worst shocks of power, in much the same manner that Roman mixed regime thinking sought such protections. Unlike most such thinkers, however, Montesquieu was not content to tinker with social organs as sufficient political philosophizing, though this has often been attributed to him. His studies in Roman law seemed to do no more than make clear to him the source of the fundamental political problem: the inability to replace rule by men with the rule of law where men are expected to realize the aims of law through their express exertions.  Power, as repository of the force of law, came to Montesquieu to seem not only dangerous but contradictory, for power eventually overawed law. The significance of this appears ultimately in Montesquieu’s use of two words, which we translate power, but which would better render his sense as power (pouvoir) and authority (puissance). He provided, on this grounds, for a separation of authorities, still more precisely than powers. The restraints were aimed rather more largely at the men in the offices, than at the offices themselves. He turned to moeurs as repository of the force of law, in which case both a new account of power became necessary and an accounting of the moeurs appropriate to the regime in which the new power would appear became necessary. [6]   Montesquieu presented the essence of the account of power in his famous Book XI, and the new moeurs are laid out in Book XIX.

To return to the founding, the Americans hotly debated the significance of Montesquieu—a fact which obviates much of the necessity for us to undertake the task to show that there was any such thing. The confusion introduced by his account of the small republic convinced many that republicanism was not possible for America as a nation. Others responded that Montesquieu was misunderstood. And to judge from his account, these last had the better of the argument. Montesquieu developed the small republic theory as an accurate account of the alternatives humans faced, in such a way as to transcend Ancient and Modern wars. In the small republic virtue (well or ill defined) could be the principle of the regime, because citizens were close enough to “look after” one another. By the same token, such a republic could not survive on its own. The remedy of a confederation is delusive, because it becomes effective to the precise degree it weakens the sovereignties of the independent members. On the other hand, if such a confederation, become a new, large state, were formed, it would then qualify for a new consideration. The new consideration consists in Montesquieu’s account of liberty, as opposed to virtue, as the end of the regime. And the heart of that account is the separation of powers.

There was a breakthrough in Montesquieu’s account of the separation of powers. To comprehend the breakthrough, one needs to consider not the process, but the objectives of government. In the chapters immediately preceding and succeeding his famous chapter on the separation of powers, Montesquieu discussed the “objectives” of differing states and the relevance of liberty as an objective. The purpose of the central discussion is to illustrate the manner in which liberty might become a “direct object” of a constitution. In other words, Montesquieu discussed not the restraint of powers as an exception to otherwise accepted principles of government but the active pursuit of liberty.

The idea was known by Montesquieu to be a radical change in perspective. Before, he held, the people's “power had been confused with their liberty.” It was accordingly thought that to concede liberty meant to concede power, to create democracy. But “democracy and aristocracy are not free states by their nature.” Why? Because the people’s power may be used, and abused, much as any other form. And in the most likely case it will be used to form citizens in the name of spurious claims of virtue. In a democracy, then, the people can enjoy liberty only when their laws conform to what they ought to wish. But in a democracy the people can make any laws they want; their power cannot be limited.

Political liberty is found only under moderate governments. But it is not always in moderate states. Liberty is there only when they do not abuse power. But it is an eternal experience that every man who holds some power is inclined to abuse it. He carries it to the point at which he finds limits. Who could say it! Virtue itself needs some limits.

Montesquieu’s review of other states ancient and modern showed that none had political liberty for its objective. Only the constitution of England had it—whether the government actually reflect it or not—and that was due entirely to the separation of powers. The separation of powers is a device through which one conveys power to the people and they, in the same instant, renounce the intention to exercise that power themselves. Their sovereign will—Montesquieu establishes the term “general will”—is held in suspension by means of the creation of separate authorities (legislative, executive, judicial) none of which has independent power but all of which may act together in the name of the people.

This subordination of the powers and officers of government hinges utterly upon the renunciation of the power to form the citizens in virtue, for such an endeavor requires comprehensive, unlimited authority. Only the people now hold such power, and they forswear to use it. Their oath is insufficient, naturally enough, and it is further required so to organize the processes, the mechanics of government, as to keep them true to themselves even in their worst moments. That separation of powers entails representation is no accident, though neither does it result merely by definition. It’s possible to imagine the authorities being divided among the people themselves—even by lot. Representation, then, what Madison calls the alienation of the people’s authority, has a separate defense: It is the surrogate upon which the operations designed to restrain the people can be effected without any harm to the people’s rights. The government which aims to assure liberty (as much freedom from the cycle of regimes as from arbitrary power in the abstract) must also be constructed on principles of liberty, on the people’s right of revolution. Such a government will exercise only such powers as the people condescend to suffer, albeit they owe to suffer it gladly.

The American appropriation of Montesquieu’s breakthrough did not fail to add a significant dimension. They, like Bolingbroke, appreciated the implications of the theory. He held that “all simple forms of government were by their very nature tyrannical.” They held that democracy was so by definition.  The universally accepted formula, “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,”—this definition actually covers the entire cycle of regimes, good and bad. But it applies with greater force to democracy than any other form precisely because, as the constituent body (the ultimate, sovereign), even if one sought to assign the people only one of the authorities of government, whenever they should meet to exercise it they could assume control of the other powers at their whim. Accordingly, popular government lay under a ban which could not be lifted by any improvement in theory or science.

The founders nevertheless affirmed that it were not sufficient for the people to be thought to rule; they actually had to prevail, or at least the majority, in governing. Moreover, no authority able to act on its own, apart from dependence on the people, could be expected to adopt liberty as the objective of its government. Therefore there could be no “will independent of the society,” allowed to act with public authority. What the founders added to Montesquieu was the claim that the people, the majority, actually does govern—that representation accomplishes the transformation into law of the actual vision of the people. They forbear to act unjustly only, not altogether.

If the weight of these reflections seems to establish a plausible case for any direct influence on the founding, I failed of my main purpose. I wished to construct a model wherein we might witness how serious‑minded men could reflect on many sources and yet arrive at an independent judgment, however such it mirrored some earlier formulation. I have reviewed the thoughts and deeds of the colonists, however briefly, to show why such questions may have arisen. I sought to show the American response to those questions in a way which departed from standard or accepted interpretations, and thus to suggest that the totality of influences must surely consist of some compound of positive and negative influences whose net worth we can never measure. Certainly, we cannot establish why the Americans became serious republicans, however ineluctably that decision may have led to the constitutionalization of the right of revolution. The attempt to end the cycle of regimes is worthy, independent of the direct influence which may have led to it. That much we may learn from Montesquieu, if from nowhere else. It is far less important that he taught this principle to the Americans than that he can clarify their principle to us. In weighing these questions I have been mindful of the caution with which the Constitution was greeted by a (properly) anonymous citizen, in the Massachusetts Centinel, September 19, 1787 ((only two days after the Convention closed):

Ye political architects! Exert all your skill; poise your centers of gravity; calculate the weights and bearings; consult the plans of Montesquieu, Harrington, Stuart, Hume, Smith, and others—but consider that never did so much depend on the quality of the materials. . .

While this particular list of authorities is extraordinary, this perhaps ordinary citizen certainly rightly fixed the attention on the truly demanding aspect of the founding, the over‑riding weight of the people. The two‑fold American solution—the radicalization of separation of powers and the detachment of the idea of sovereignty from the idea of representation—id really a single affirmation of a particular arrangement of the people in the regime. In the decisive sense, there is no source for the American solution to the problem of human politics: it was an original creative act, struck by the minds of those actively engaged in the process of founding the regime. Look wherever else you may; you’ll not find it again. They were, however, greatly aided by a more than casual familiarity with the great works in the tradition of western religion and political philosophy.

ADDENDUM

I have not in these reflections been unmindfully iconoclastic. America seems to me to stand in so unique a position in the world, that it is a work of the first magnitude to call attention to the fact of the supersession of the ancient regime. I am familiar with the bon mot of Fustel de Coulanges and generally regard it as true. Here, though, I take exception to it, while nevertheless finding it many ways instructive for other efforts to explore the foundations of this republic. Accordingly, I reproduce it here, as a borrowed signature:

Political institutions are never the work of the will of one man; even the will of a whole people does not suffice to create them. The human facts which engender them are not among those which the caprice of a single generation would be able to alter. Peoples are not governed in accord with how they please to be, but according as the totality of their interests and the foundations of their opinions require them to be. It is doubtless for this reason that several ages of man are necessary in order to found a political regime and several other ages of man in order to overthrow it.

From this also derives the necessity for the historian to extend his researches over a vast space of time. He who would limit his study to a single epoch would expose himself, even within that epoch, to grave errors. The century in which an institution emerges in full clarity, brilliant, authoritative, master, is almost never that in which it was formed and from which it has taken its strength. The causes to which it owes its birth, the circumstances in which it has mined its vigor and vitality, often belong to a century far anterior. That is above all true of feudalism, which is, perhaps, of all political regimes, that which has its roots at the most profound level of human nature. [Histoire des Institutions Politique, Hachette, 1877, pp. 2‑3.]



[1] This paper has been prepared for the Symposium on “The Intellectual Sources of the American Constitution,” sponsored by the Liberty Fund, Inc.’s “Bicentennial Series,” held at Williamsburg, Virginia, October 4‑7, 1984.

[2] Antinomianism in the Colony of Massachusetts Bay, 1636‑1638 (1894).

[3] Book 1, especially, chapter 1, ”Of the Absolute Rights of Individuals.”

[4] The authority, of course, is Locke: Second Treatise, chapter iv, “Of Slavery.”

[5] Daniel Mornet, Les Origines Intellectuelles de la Révolution Française (Paris: Librairie Armand Colin, 1954 [5th ed.]), p. 32.

[6] Again departing from intellectual tradition, I take Montesquieu’s use of moeurs in the broad sense, the equivalent of what Tocqueville defines as follows: “I understand here the expression of moeurs in the sense which the ancients assigned to the word mores; not only do I apply it to moeurs properly so‑called, which one may call the habits of the heart, but to the different notions which men possess, to the diverse opinions which run among them, and to the totality of ideas of which the habits of mind are formed. I understand in this word the moral and intellectual state of a people.”  De la Democracie en Amerique, Book I, p. 392 (Garnier-Flammarion).

Back to top