Constitution Day
by Paul A. Rahe
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Copied here 19 Sept. 2010    Includes some additional hyperlinks.

Today marks Constitution Day.   (Public holidays in the United States)   On 17 September 1787, in Philadelphia, the Framers of the American Constitution added their signatures to the document they had produced, and soon thereafter it was dispatched to the Continental Congress for consideration by the states. On this day, it is appropriate that we, their heirs, reconsider their handiwork and ask whether ours is still a constitutional government.

In their deliberations, the Framers confronted one great question, and it was largely on this question that the debate between the Federalists and the Anti-Federalists during the ratification period turned. Can one establish an enduring republic on an extended territory? This is the question that Americans in this crucial period wrestled with.

As I have argued in earlier posts here and here and, in much greater detail, in my recent books Montesquieu and the Logic of Liberty and Soft Despotism, Democracy’s Drift, the Americans had reason to worry. In the late eighteenth century, it was almost universally agreed that what they were attempting could not succeed. Such was the argument that Montesquieu advanced in the first part of his authoritative book The Spirit of Laws, and he had grounds for advancing such a claim. Athens and Sparta were situated on territories of no great size, and the same could be said for early Rome and for Lucca, Florence, and Venice in the Middle Ages and the Renaissance.

Of course, late republican Rome was an exception to the rule. Under the late republic, nearly everyone in Italy was a citizen, and that polity ruled the Mediterranean and beyond. But – as both Machiavelli in his Discourses on Livy and Montesquieu in his Considerations on the Causes of the Greatness of the Romans and their Decline and Spirit of Laws had pointed out — Rome was also the exception that proved the rule. It was a small republic that, by dint of conquest, came to be situated on an extended territory; and soon after it had expanded, it collapsed. The Framers of the American constitution faced a great challenge, and this they and their opponents among the Anti-Federalists knew all too well.

The challenge was straightforward. Polities situated on extended territories sit at a great distance from the vast majority of the people whom they rule. This is consistent with despotism; and if the distance is not too great, history suggests, it is consistent with legitimate monarchy and the rule of law as well. But for republics it poses a seemingly insuperable challenge. Governments located at a considerable distance from the people they rule tend to be invisible; and when human beings armed with authority are invisible, they tend rightly to suppose that they can get away with a lot. Moreover, large polities tend to face emergencies more often than small polities, and emergencies require from rulers vigor, alacrity, and decisiveness of the sort most easily provided by a man authorized to act alone. The challenge facing the American Framers was to devise a constitutional structure capable of producing a government fit for meeting emergencies but unlikely to become, as James Madison once delicately put it, “self-directed.”

To meet this challenge, the Framers turned to the second and third parts of Montesquieu’s Spirit of Laws – where he sketched out two different ways in which a republic can overcome this limitation on its magnitude. It was, he realized, necessary that it do so because – at least in modern times – no small republic could hope to marshal the resources necessary for its self-defense when attacked by monarchies intermediate or despotisms immense in size.

The first expedient suggested by Montesquieu was federalism. By means of federalism, a group of republics could project power in the manner of a monarchy while remaining small enough to be genuinely self-governing.

Montesquieu’s second expedient was the separation of powers. By distinguishing along functional lines between the executive power, the legislative power, and the judicial power and by distributing these three powers to different bodies in such a fashion as to render them separate and quasi-autonomous, the English had managed to transform a monarchy into a republic capable of sustaining itself on an extended territory. For emergencies, they had an executive capable of vigor, alacrity, and decision. To prevent this executive from becoming a tyrant, they had a House of Commons responsible to the electorate and capable of calling the executive’s servants to account. To avoid populist excesses, they had a House of Lords capable of checking the House of Commons; and to protect the liberty of the citizens, they had judges who could not easily be removed from office and juries selected from among the peers of those accused.

The Americans combined both expedients. To begin with, they instituted a federation, building on the remnants of the old colonial system and on the structure that existed under the Articles of Confederation. At the center, they established a government of limited powers – capable of defending the nation, of guaranteeing to every state a republican government, of regulating commerce between the states, and of responding to emergencies. To the states and local governments, where the territory was comparatively small, they left all other legitimate powers. To make the federal government in some measure independent of the states, they provided for direct popular election of the House of Representatives; and to enable the states to protect their own prerogatives from federal encroachment, they had the state legislatures elect the federal senate.

At both the state and federal level, the American founders instituted a separation of powers, giving to the executive, the legislators, and the judiciary the means by which to defend their own prerogatives and the motives for doing so – and, by dividing and separating the powers, the Founders sought to make the government and its operations visible to the citizens. Each branch served the general public as a watchdog with regard to the others.

As I attempted to show in earlier posts linked here and archived here and in my two books, we have – over the last one hundred years – gone astray. In a massive fashion, the national government has encroached on the prerogatives of the states, substituting its jurisdiction for theirs and, by dint of mandates both funded and unfunded, reducing them to instruments for the pursuit of public policy dictated from the center.

Something similar has been done to the separation of powers. Congress, in clear breach of the Constitution, has conferred on administrative agencies within the executive branch the power to issue regulations that have the force of law – which is to say, the power to legislate. And these agencies combine all three of the putatively separated powers – devising and promulgating regulations which have the force of law, enforcing these regulations, and adjudicating disputes that arise with regard to these regulations. This is, Montesquieu asserted and the Framers believed, the essence of despotism. It means that most of what the federal government does it does in camera, behind closed doors, out of the public view.

And not surprisingly, as we have seen in dramatic fashion in the last twenty-one months, the federal government has become what Madison most feared: an entity self-directed. If we are to pass our legacy of self-government on to our progeny, we will have to re-establish constitutional government in this country by rolling back the administrative state, restoring legislative accountability, and returning to the states the prerogatives that are rightly theirs.