|Today marks Constitution
holidays in the United States) On 17
September 1787, in Philadelphia,
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
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
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
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
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
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.