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By Root 307 0

to the Constitution was his argument in The Spirit of the Laws for separate governing powers and against centralized, consolidated authority. Recall he wrote that “[w]hen legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals” (2, 2, 6).

The delegates adopted this general design. The Constitution’s first three articles set forth the division of power in the new federal government.

Article 1, Section 1 of the Constitution provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article 2, Section 1: “The executive Power shall be vested in a President of the United States of America.…”

Article 3, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.…”

Echoing Montesquieu, Madison explained later in Federalist 47 that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.…”11

ENUMERATED POWERS

Even more, the delegates were not satisfied that dividing authority was enough to deter the despotism that might result from a central government. Therefore, rather than granting wide-ranging authority to each of the three branches to legislate, execute, and adjudicate, the delegates restricted the character of each branch by enumerating their specific powers for the purpose of protecting the liberty and rights of the individual, the sovereignty of the states, and the civil society.

The delegates’ actions in limiting the role and scope of the federal branches also comports with Montesquieu’s warnings about legislators in republican governments abusing their law-making power to destroy the nature of man and the civil society. Montesquieu cautioned, “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). “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.…” (3, 19, 5) “[W]hen one wants to change the mores and manners [of a nation], 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). “Nature repairs everything.… 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).

Nonetheless, the constitutional plan was attacked for not being clear enough about the separate roles of each of the three branches, one from the other. In defense, Madison wrote, “The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying, and recommending it most effectually to the attention of mankind.… [I]n saying ‘there can be no liberty