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. Not two weeks ago, in my car I heard a popular radio conservative (usually correct, by my esteem, if you want to know) 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, Madison decided that he could outsmart him. More accurately, the Montesquieuan admonitions were actually limitations on what a well-functioning republic could 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 a 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. 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 wholly dispensable: allow size, diversity, and the consequent factionalization. Do so, he suggested, by reducing them to nothing...with hyper-pluralism. Control pluralism with more pluralism, drowning out the competing voices?! Madison deserves credit: 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 -- but at least 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 best governmental form 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 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 countries were formed by the former colonies.
Madison did not listen.
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). Allowing balances would lead to collusion among the branches, he 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. Presumably, Madison thought this would achieve greater control 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 incapacitated.
Taken together, these three "fatal conceits" of 1787 render the infirm state of the American Constitution to be a work that Madison hath wrought. Unwarned, it might have been a forgivable offense; warned... less so. Picking nits with Madison or the Constitution is always unpopular with conservatives. Yet I urge fellow patriots: read the wise voices of the Antifederalists before rendering that determination. Their teaching is the world's most heavy instance of, "if it ain't broke, don't fix it." This meant you, Madison.