In the early years of the eighteenth century, Baron De Montesquieu wrote his famous The Spirit of the Laws in which he noted:
“. . .there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subjects would be subjected to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
This principle, the separation of power, was the cornerstone on which this nation was founded. The founding fathers had read Montesquieu and took what he said to heart as they knew first-hand of which he spoke. Our lessons are just beginning.
One again, a pithy, though brief, comment. No doubt my comment will be less substantive, but I offer it anyway.
I have heard people argue that the principle of divided government in this country came from the Native Americans, but I have found no direct evidence for this, only arguments either by analogy — it is like the Iroquois Federation, arguments by continuity– contact of colonial leaders with Native Americans, or arguments by affinity — expressions of appreciation by colonial leaders for Native American societies.
What is definitively clear is that the authors of the Declaration of Independence, the Constitution, and the Bill of Rights were students of European thinkers, such as Locke, Montesquieu, and European law, the English Constitution, and English Common Law, among other influences.
Montesquieu’s argument that the best government would contain elements of a monarchy (Presidency – decisive leadership), a Republic (Judiciary — constitutional rule of law), and Democracy (Congress — elected representation) is clearly evident in James Madison’s Federalist Paper 47 references to Montesquieu, whim he regarded as having the same stature among political thinkers that Homer enjoyed in poetics.
Madison found Montesquieu’s argument that if liberty is the goal of a government, then that government must be built upon the separation of its different elements of power, that is, a system of “balanced power”. This is the core premise underlying the Constitution of the United States. This leads us to the contemporary situation.
The Framers were well aware that an incompetent demagogue could become President. They were concerned that the House of Representatives, a directly-elected body, might be unduly influenced by that demagogue.The Senate, filled with those appointed by State Governors, would, they argued, be the best check against both unfettered executive power and the whims of the political moment.
In short, the Framers recognized that an executive worthy of impeachment might well be elected, but they did not foresee a directly-elected Senate politically tied to a demagogic executive. Even less did they envision a Senate with no sense of duty to defend and protect the Constitution. The Framers apparently assumed that the Senate would be filled with men (in their minds) who were of solid character, great intellect, personal integrity, and dedicated to the defense of the Constitution — men such as they viewed themselves to be.
The idea that the Senate, responsible both for the appointment of all key government officials, including the federal judiciary, and for removing an incompetent demagogue from the Presidency, would be dominated by partisanship rather than true patriotism is something they apparently could not imagine.
Benjamin Franklin said after the Constitutional Convention that the United States had not a monarchy but “A Republic, if you can keep it.” That Republic was conceived on the basis of divided government and a structurally-contested balanced of power. If that balance were to fail, then the Republic would fail.
We are now faced with an Executive Branch and Congressional majorities who seek a consolidation of power for partisan aims rather than a balance of power to protect the Republic. This clearly has been reflected in the policies of this administration and in the legislative agenda of the Republican Congressional leadership since even before the inauguration of the forty-fifth presidency. This left many with the hope that the federal judiciary could serve as the ultimate check on the unconstitutional tendencies of this administration. To some extent, that has occurred, but the horizon is far from bright.
The groundwork for the Republican takeover of the federal judiciary was laid in the last administration by the Republican leadership in the Senate. Refusing to fill seats in the federal judiciary with President Obama;s nominees, and flouting not only Senate tradition but the Constitution itself by refusing its duty to advise and consent on the nomination of Judge Merrick Garland, the Senate leadership left many federal judicial appointments, and at least two Supreme Court vacancies, in the hands of the most ignorant and irresponsible president in the history of this country — that very demagogue for whom the Impeachment Clause was originally written.
The Senate confirmations of Justice Gorsuch and now Justice Kavanaugh, as well as a raft of other ideologues to the federal judiciary, will result in a government where there exists a judicial check only upon one party — the Democrats. There will be no effective check upon the Republicans.
This is precisely the aim of The Federalist Society, the Heritage Foundation, and Senator Mitch McConnell. It is also the end of the balance of power in this Republic.
What that means we shall have to wait long to see. I, for one, am not hopeful.
Well said. The Founders saw the Senate as the American answer to the British House of Lords. They gave the Senate immense powers, as you point out, and this angered Henry Adams, among others. They did not trust the people to judge and saw the Electoral College as a way to guarantee that an unqualified candidate would never become Chief Executive. Ironic that in the recent election the people chose the better alternative and the Electoral College elected our president! Now it is all about POWER and the Republic is withering away.
Good blog and comments. Trump could have picked several jurists that would give the evangelicals their abortion repeal hopes. The real reason for Kavanaugh was his position paper that said a President could not be subpoenaed. If that position was allowed, we would become an autocracy.
“Th’ abuse of greatness is when it disjoins remorse from power.”
Brutus in Julius Caesar (2.1.19-20)
As usual, The Bard was on to something.