Ameritopia_ The Unmaking of America - Mark R. Levin [55]
Montesquieu urged an independent and temporary judiciary in which judges, chosen from the people, strictly adhered to the law. He wrote, “The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires.… But though tribunals should not be fixed, judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted” (2, 2, 6). Therefore, Montesquieu insisted that the role of a judge is to apply the law, not impose his opinion or prejudice. The latter approach is destructive of the nature of the judiciary and the broader republican government.
Furthermore, in regard to governing, Montesquieu raised numerous cautions to legislators, which, if ignored, he believed could gradually lead to despotism.
• The government should not force a way upon the people against their will, for to do so is tyranny by legislation. “There are two sorts of tyranny: a real one, which consists in the violence of the government, and one of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking” (3, 19, 3).
• It is essential, therefore, that in republican government, representatives avoid efforts intended to change the general spirit of the nation—that is, the legislator must help preserve and protect society, not eradicate it. As if describing the American people, Montesquieu wrote, “If there were in the world a nation which had a sociable humor, an openness of heart, a joy of life, a taste, an ease in communicating its thoughts; which was lively, pleasant, playful, sometimes imprudent, often indiscreet; and which had with all that, courage, generosity, frankness, and a certain point of honor, one should avoid disturbing its manners by laws, in order not to disturb its virtues. If the character is generally good, what difference do a few faults make? … The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our natural genius. If one gives a pedantic spirit to a nation naturally full of gaiety, the state will gain nothing, either at home or abroad. Let it do frivolous things seriously and serious things gaily” (3, 19, 5).
• If change is considered desirable, the manner in which it is accomplished is, first and foremost, through persuasion, not legal coercion and government fiat. “We have said that the laws were the particular and precise institutions of the legislator and the mores and manners, the institutions of the nation in general. From this it follows that when one wants to change the mores and manners, one must not change them by laws, as this would appear to be too tyrannical; it would be better to change them by other mores and other manners” (3, 19, 9).
• Montesquieu argues that government should not attempt to correct or control all things and intervene in all matters. Government should be limited in its power, scope, and purposes. “May we be left as we are, said a gentleman of [a republican government]. Nature repairs everything. It has given us a vivacity capable of offending and one apt to make inconsiderate; this same vivacity is corrected by the politeness it brings us, by inspiring us with a taste for the world.… May we be left as we are. Our discretions joined to our harmlessness make unsuitable such laws as would curb our social humor” (3, 19, 6).
• Laws should reflect the