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.
I have been reading a painstaking analysis of the forming of our Republic. It is very long but fascinating. The period before and just after the American revolution has always been a bit hazy for me and it is a relief to have some of the haze cleared away. The eleven years between the signing of the Declaration of Independence and the adoption of the U.S. Constitution were especially remarkable years. The thirteen colonies were all busy writing their own constitutions (while the war was in progress) and struggling with the issues that would face the united colonies later on. One such issue was the “mixed form” of government.
Some of the more radical colonists like Thomas Paine and the authors of Pennsylvania’s constitution wanted nothing to do with mixed governments; they wanted a pure Democracy. A great many others distrusted the “people” and wanted what they regarded as the more solid foundation of an aristocracy of some sort to temper and provide balance to offset the “lower” house. This was Jefferson’s idea behind starting up the University of Virginia — to train young men to become future leaders. He was convinced the people at large would recognize exceptional people and elect them to public office. They would form America’s new aristocracy! Other thinkers were not so sanguine, and eventually Jefferson himself began to have doubts. But nearly all were agreed that two houses were essential — with a governor at the head of each colony’s government whose role would be exclusively that of executor of the legislative will. Each house of government would differ from the other in important respects — the lower house, which was similar to the British House of Commons, and the upper house, which they hoped would resemble in important respects the House of Lords. The problem was how to assure that the upper house (the Senate) was not just a mirror image of the lower house — given that America had no aristocracy?
Jefferson and his peers in other states finally decided that even with electoral colleges designed to elect the folks to the upper house (the people themselves couldn’t be trusted) the Senators in the various colonies began to look very much like the representatives in the lower house. But they were convinced that the House of Lords in England lent ballast to the ship of state and it was essential that the colonies have something like that or subject themselves to the rabble running the show — people at large who had no “public virtue,” a quality they thought essential for the common good. How to guarantee that the Senates would be “the best and wisest” — which was their perception of the British aristocracy — and thus more stable than the lower houses?
In the end since there were no natural aristocrats in America — or unnatural ones, as it happened — the various colonies settled on property ownership as the only criterion that could separate the “wiser” officials in government from the rest of the herd. It was clear that these people did not want a King or any royalty. They pretty much tied the hands of their governors and, later, the President. But they didn’t trust the rabble, either. When they settled on property as the criterion for membership in the Senate they did just that: settled. It was the best they could come up with. They rejected birth and were unable to find any criterion that would satisfy other than property to differentiate the upper house from the lower one.
It would appear that it was during this time — these eleven years — that the Americans came to grips with the question of the place of wealth in government. They distrusted great wealth (as I have noted in a previous blog) but they could come up with nothing better to separate the two houses they regarded as essential to a Republic. They understood power and knew full well how easily it could be abused. But they failed to see that wealth would become the greatest power in this country — though Jefferson was leery, noting that “‘Integrity was not in my experience the characteristic of wealth.” Both “he and Madison were baffled by the apparent inability of the people to perceive the truly talented and were thus compelled reluctantly to endorse property as the best possible source of distinction in the new republics.”
By making property the criterion of membership in the Senates of the various colonies — and giving the Senate pride of place in our Constitution later on (note how much of that document is focused on the operation of the U.S. Senate) they opened the door to excessive power in the Senate (which Henry Adams complained about loudly a hundred years later) and the ownership of the government itself by the very rich.
[Quotations are from Gordon S. Wood’s excellent The Creation of the American Republic 1776-1787.]