August 11, 2025 • 20 mins
The separation of powers doctrine formulated by Baron de Montesquieu profoundly shaped America's constitutional foundation and remains central to our political system today. Dr. Paul Carrse explains how this French philosopher's revolutionary ideas about dividing government into legislative, executive, and judicial branches provided the blueprint for American democracy.
• Montesquieu's "Spirit of Laws" (1748) served as the political science textbook for America's founding generation
• While John Locke influenced revolution theory, Montesquieu was the most crucial philosopher for constitutional design
• The three-branch government model prevents concentration of power while creating beneficial division of labor
• Montesquieu innovated by emphasizing an independent judiciary as the "safety valve" for liberty
• American states began implementing the separation of powers in their constitutions even before the Declaration of Independence
• The system includes deliberate power mixing (checks and balances) to prevent any branch from dominating
• Bicameral legislature design creates space for more argument, compromise, and representation of minority viewpoints
• Montesquieu's philosophy explains why we have structures like presidential veto, judicial review, and legislative oversight
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Episode Transcript
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Speaker 1 (00:00):
Welcome back everyone .
We have Dr Paul Carice backwith us today to talk about
Baron de Montesquieu.
Dr Carice, our question todayis how did Montesquieu's idea
about separation of powersinfluence our Constitution?
Speaker 2 (00:16):
Thank you, liz.
This is a really importanttopic.
It fits with topics andquestions we posed in earlier
episodes about philosophy andphilosophers are very big ideas
shaping the Declaration ofIndependence and the argument
for revolution and independence,shaped now to be thinking about
(00:37):
our constitutional order as awhole from the founding period
being shaped by leadingphilosophers.
This is an Enlightenmentphilosopher, as the term is used
, a modern philosopher ofliberal, democratic politics.
Montesquieu is a Frenchman.
He is a lawyer who becomes ajudge, but he becomes more
(01:01):
fascinated as a young man withphilosophy than with being a
lawyer and a judge and as anobleman he has enough money to
devote himself to philosophy andhe becomes quite famous as a
fairly young man and that giveshim for a book.
He writes a kind of novel, asatire about French politics and
(01:21):
European life, about Frenchpolitics and European life, and
that gives him a little moretime to write a huge work that
he spends 20 years writingcalled the Spirit of Laws or the
Spirit of the Laws, and thisbook by Montesquieu was the
textbook, in effect, ofpolitical science for what
becomes the American founders'generation.
(01:43):
It's published in 1748 inFrance.
It's very quickly translatedinto English.
One reason it's translated intoEnglish is.
He has two long chapters inthis very big book that praise
the English constitution andEnglish politics because of its
devotion to liberty.
And the English like this theylike a French nobleman who's a
(02:06):
baron and a judge.
They like this, and so it getstranslated very quickly, by 1750
, and then it's in the Americancolonies very quickly, and so by
the time that, think of peoplelike John Adams and Thomas
Jefferson and Alexander Hamiltonand James Madison going to
college in the American colonies.
Well, this is like the new hotstandard kind of textbook of
(02:32):
what the science of politics is,of what political philosophy is
for.
Very clearly, it's a huge book.
He's being very comprehensive,it's almost encyclopedic, about
monarchies and republics andhe's very against despotism and
authoritarian politics.
But he's, you know, for theAmerican colonists this is great
(02:54):
because he's talking aboutpolitics of liberty and the rule
of law, supporting liberty andconstitutionalism.
So he becomes, as the AmericanRevolution is breaking out, we
think, well, john Locke is themost important philosopher and
there's a way in which Locke ismore important than Montesquieu
on the arguments aboutrevolution.
But Montesquieu is always therein the 1760s, 1770s, 1780s.
(03:20):
So he's I think the scholarsare correct to argue he's the
single most importantphilosopher of the entire
founding period.
And so here's the separation ofpowers question.
If you think about theDeclaration of Independence, you
read the politics set the rulesand guardrails so that these
(03:49):
ideas of individual rights thatwe have, these ideas of equality
among all people that we have,are actually being practiced and
enforced and observed byeverybody.
And Montesquieu's argument isyou need to disperse the powers,
you need a kind of division oflabor if this politics of the
(04:14):
rule of law and ordered liberty,constitutional government is
actually going to work.
So the three powers and we getthis formula from Montesquieu,
not from any other philosopherthe three powers are you want a
legislative power, a body ofrepresentatives who make the
(04:35):
laws.
But how do they do that?
They argue with each other,they deliberate with each other
to make the laws, and then we'lltalk more about how complicated
Montesquieu thinks that shouldbe.
Then an executive power, a, agovernor, a president, you know,
ministers, things like that,people who will take the laws
and execute them, implement them, administer them, make sure
they're actually being followedby everybody, including
(04:58):
everybody in the government, aswell as the citizens and
foreigners and others.
So we've got two powers nowlegislative power, making the
laws, executive power.
And then he is definitely theinnovator, maltescu is the
innovator of this third one,because John Locke talks about
(05:20):
an executive power and alegislative power.
Legislative power is first forLocke, of course, then executive
power, but he doesn't reallytalk about judges or judiciary
very much.
Locke doesn't.
Montesquieu makes a big dealout of the judicial power of
courts.
It's not.
He doesn't invent the idea.
I mean, you know Aristotle'stalking about courts and judges
and juries and things like that.
Montesquieu just says if youwant a politics of liberty and
(05:47):
an ordered liberty under therule of law and
constitutionalism, you must havean independent judiciary.
Now it's the third power, it'sthe least powerful power, it's
the least political power, butit's got to be there.
And so that's the separation ofpowers, theory, philosophy that
Jefferson Adams, adams, hamilton, madison, john jay, they're all
reading this in college in away, and it's there from 1775,
(06:10):
right before we forget this,before the declaration of
independence in july of 1776,the second continental congress
is saying to the colonies youare in effect states already,
you should, should be draftingconstitutions.
You're not colonies anymore,Because you know, especially
after Lexington conquered, shotshave been fired, you know.
(06:30):
So get serious, folks.
And there are states that draftconstitutions by late 1775 and
early 1776.
And what do they do?
Separation of powers this stateshall have a government of this
kind and it shall have alegislative branch.
It shall have an executivebranch, it shall have a judicial
branch.
It's Montesquieu right.
(06:51):
So I'm not saying Locke is notimportant at the time of the day
.
Right, locke's very important,but he's not the only important
philosopher.
And the declaration itself saysthe king and the parliament
have violated this principleabout the legislative power and
this principle about theexecutive power and this
principle about the judicialpower and and the way the powers
are supposed to interact and beseparated from.
(07:12):
So and in fact god is referredto, the divinity is referred to
as a legislator, an executiveand a judge, if you think about
the references to a divinity inthe Declaration of Independence.
So this is a big idea, thisseparation of powers idea.
We kind of take it for grantedand we kind of demean it.
(07:34):
Oh, you know, these are thestupid questions.
You get on a quiz about howmany branches of government are
and who cares?
It's just mechanics, it's justwrong.
This is foundational for, touse Malteski's phrase for his
book, the spirit of the laws,the whole spirit and philosophy
of our form of politics and law.
Speaker 1 (07:57):
So why did Montesquieu then think that kind
of this complicated structureof institutions would be helpful
to or for free politics, ratherthan a hindrance, because it
would almost seem to somebodywho's maybe not familiar of?
Why are you giving all of thesedifferent branches, all of
these different you know jobs?
(08:20):
Why can't Congress or thelegislator make laws and then
make sure people are followingthem?
Speaker 2 (08:27):
Yes, this kind of concern about the inefficiency
or how complicated this is, hardto understand, hard to operate,
hard to get things done right.
This criticism really arose inthe late 19th century and the
20th century.
Among American thinkers.
Woodrow Wilson is probably themost famous as a professor of
political science, before hebecomes president, saying that
(08:50):
this is a kind of Newtonianmechanics, you know action and
reaction, and it's toocomplicated a machinery.
We need something more organic.
And he of course becomespresident.
But as a political scienceprofessor he's saying a single
president collaborating with alegislature, the way the British
do it right, a prime ministerwho's actually a member of the
(09:12):
parliament, of legislative body,that's much more organic and
efficient, gets things donequickly.
So Maltescu knows about thosearguments and is insisting that
the principle of liberty isimportant and he's very worried
about concentrating too muchpower in any one branch and
there's a negative, so to speak,part of that preventing
(09:34):
something bad from happeningDespotism, authoritarianism,
actually majoritarianism.
You know you have a verypopular figure, he or she wins
an election and then they justwant to change everything right
and minority views then gettrampled upon and minority
rights get trampled on.
So is very concerned to arguethe advantages of making a more
(09:57):
complicated form of government.
And the negative side isprevent too much power being
concentrated in any one branch,especially in a king, a monarchy
or president or a popularfigure, right?
So that's the kind of negative,preventative side.
The positive side is this ideaI mentioned earlier a division
of labor.
We do this all the time in life, right?
(10:18):
Wouldn't you be a better judgeif you focused on judging?
You know, as complicated enoughas it is, knowing all the law,
knowing all the case law,knowing how lawyers argue and
think, and having and you're nottrying to do five jobs, okay,
and this is true all over ourlives Wouldn't legislators do a
better job if they focused onthe very complicated and
(10:41):
important task of representing apopulation of citizens from
different places and differentpoints of view and arguing with
each other, listening to eachother, arguing with each other
and here Montesquieu, it's sortof the principle.
You could make fun of it themore complicated the better.
He likes what the English cameup with across hundreds of years
of constitutional development.
(11:02):
This legislative branch.
The English say we're going tosplit it in two, we're going to
have an upper house and it's aconstitutional monarchy.
So there's an aristocracy, aclass of nobles.
We're going to have an upperhouse for the nobles, the House
of Lords, and we're going tohave a lower house with more
members in it for the commons,the commoners, the common people
(11:24):
.
And Montesquieu says this is avery good idea.
And of course the Americansthen take this over and saying
yes, we want an upper housewhich becomes the Senate.
In the state constitutions theyhave different names an upper
house, smaller, differentfunctions, and then a larger,
more representative, you couldsay, more democratic branch in
the legislature.
(11:44):
So the more complicated thelegislature is, the better,
because now you're doing betterwork in representing different
points of view and there's gotto be more argument and then
more compromise, and so therethe legislative power.
Moteski's idea is he likes theEnglish and wants to sort of.
You know you have to do it inyour own way wherever you are in
(12:04):
the world, right, but here'sthe English model.
You will get out of thatcomplicated legislative process
bicameralism, we call it twohouses.
You will get more argument,more space for minorities to
make their arguments or minoritypoints of view, and more
compromise, and then you canthink on the negative side, the
laws will be less dumb, lessstupid, you know, less unjust,
(12:29):
or you could think on thepositive side, these laws will
be smarter, a little bit wiser,a little bit more just and have
a larger consensus majoritybehind them.
Ok, so legislative power willbe better if that's separate
from the others, executive powerwill be.
That, you know, is action, theprinciple of action.
If an executive can focus onaction, not on having to sit
(12:51):
around and deliberate and listento people and argue that'll be
done better, and then thejudging power is kind of the
safety valve for these two, andit's he's really the innov in
this.
You want a safety valve, beyondthe lawmakers and the people
who execute and enforce the laws, for the average citizen or
association or corporation tosay wait a minute, I'm not
(13:15):
guilty of violating the law.
A prosecutor from the executivebranch has come after me, right
?
Or a fellow citizen or anothercorporation or somebody, some
entity is violating the law andthe executive is not doing
anything about it and I need tofile a lawsuit, right.
So this leads to the greatAmerican principle I mean it's
got to be written somewhere inour founding documents the right
(13:37):
to sue.
You know, I mean this is thegreat American thing, right,
that we have lawyers and we cansue other people, people, right.
So this is Montesquieu's idea Ifyou divide, you'll get better
functioning in each of the threecrucial functions legislating,
executing, executive andenforcing.
And especially there, by theway, I should mention
(13:59):
international affairs.
Right, president or primeminister is the chief executive
about foreign affairs anddefense and security and war?
You need speed there, notdeliberation.
You know you need to get stuffdone quickly.
And then the judicial power tobe this kind of safety valve and
then to sort of wrap it all up.
(14:21):
That's all the positivedivision of labor kind of
argument I mentioned.
The negative don't concentratepower.
Montesquieu is also saying thatthis will be a better form of
politics for everybody if thepowers are not entirely separate
(14:43):
from each other.
A little bit mixed with eachother, because this is a paradox
from each other.
A little bit mixed with eachother because this is a paradox.
This is how you keep themseparate.
They can kind of protect eachother.
They can protect themselvesfrom the others by being a
little bit mixed with the otherone, right?
So the president has a vetopower.
In our constitutional system, agovernor or a president has a
(15:04):
veto power against thelegislature.
He can't strike down every law,the veto can be overridden, but
it kind of, you know, if theexecutive thinks, hey, wait a
minute, you folks in thelegislature are way out of your
lane, you're way out of yourbounds, it's a kind of
protection, defensive mechanismand the legislature, well, can
prevent the executive from doingthings by not funding the
(15:27):
executive or by overridingvetoes or by turning down
appointments that the executivesuggests.
The judiciary has this power,which it's not literally written
in our 1787 Constitution butwas implied at the
Constitutional Convention.
We call it judicial review, apower of constitutional review.
Right, if they think thelegislature and the president
have gone out of their bounds,gone out of their lane and
(15:48):
written a statute or some otheraction that violates the
constitution, the judges can say, hey, wait a minute, that's
null and void, right?
So this kind of a little mixingof the powers, just enough to
keep them separate and and makesure the other players in the
game are following the rules.
So you could say the separationof powers is generally the
(16:10):
positive principle, the positivedivision of labor.
Each of these functions will bedone better if separated.
And checks and balances, whichis a different principle but
clearly related, is the kind ofnegative principle, the checking
principle, to help with theseparation and to generally help
with this issue of not lettingany one branch or center of
(16:31):
power have too much power.
So that's the larger argumentand again Montesquieu spells
this out in the Spirit of Laws.
He uses the English Constitutionas a case study, but he's
making his own philosophicalarguments about it along the way
, about it along the way, and itends up being the concise
(16:55):
statement of the Englishpolitical constitutional culture
.
There's no one in the Englishlanguage who states it so
concisely and philosophically.
Blackstone after Montesquieuwrites commentaries on the laws
of England and cites Montesquieuas the first philosopher,
modern philosopher he citesright.
So it's a funny thing.
We know this in life, right?
You travel abroad and you learnsome things about another
(17:18):
country, but you also see somethings about your own country by
having a.
And Montesquieu lived inEngland for about 18 months and
then wrote this study later andit ends up being this wonderful
concise statement and it justgoes like wildfire.
In the American colonies theythink that's what a
constitutional government ofliberty is.
And so my hunch is this wordright in the middle of the
(17:41):
Declaration of Independence.
We don't pay a lot of attentionto it a charge where the Second
Continental Congress sits inJefferson's draft.
Almost in this way, he, theking, has joined with others to
violate our constitution in thesingular Jefferson had our
constitutions plural.
And the Congress says SecondContinental Congress says no,
this violates our constitution,it violates the constitution of
(18:04):
liberty.
What does that mean?
That's Montesquieu'sconstitution of liberty.
His explanation this is whatthe English political culture
and Constitution of Liberty is.
The king and parliament areviolating it.
So that's Montesquieu'sinfluence right there in 1776.
And so look, if you don't likethis form of government, it's
too complicated and you want tomake your arguments against it,
(18:27):
the challenge for you is youbetter read Motsku and you
better read Bloxton and youbetter read the federalist
papers and you better know thevery big, long thinking and
arguments defending this kind ofconstitutionalism which is in
our federal constitution and inalmost all the state
constitutions have thetripartite separation of powers.
(18:48):
So you better know about allthis and then have your
criticisms and complaints.
Speaker 1 (18:54):
And I appreciate that you brought up the Federalist
Papers, because that'll be inlater episodes.
So as you're talking about, youknow, separation of powers, I'm
thinking about Federalist 51and thinking about Federalist 70
and Federalist 78 when we talkabout the executive and the
judiciary, and I know we havesome really great episodes
coming up on that.
So Montesquieu really didn'tjust have a little bit of
(19:17):
influence, there was a lot ofinfluence and we see that.
Dr Carice, as always, thank youso much.
Speaker 2 (19:25):
Thank you very much, Okay next one.
Speaker 1 (19:29):
See, I warned you, I was going to go on too long.
You're totally fine because youare answering.
But you but you kind of did,and I was actually looking, as
there is a question on stateconstitutions that Sean is doing
, so that that question willeventually get answered.
So, yeah, no, that was that'sgoing to tie in so nicely,
(19:52):
because I already recorded withAlan Gibson and he did
Federalist 10 and 51.
So a lot of what you said isalready going to marry into his.
So it's going to be yeah,Alan's a good guy.
Speaker 2 (20:01):
That's terrific.
Yeah, okay, okay, let me pullup my notes for yes, hopefully I
won't go 19 minutes on GeorgeWashington, I'm excited about
him too.
So, yeah, okay, okay, let mepull up my notes for.
Speaker 1 (20:08):
Yes.
Speaker 2 (20:09):
Hopefully I won't go 19 minutes on George Washington.
Speaker 1 (20:11):
George Washington.
Speaker 2 (20:12):
I'm excited about him too, so got to be careful.
Speaker 1 (20:15):
I love George Washington.
Speaker 2 (20:17):
All right, let me just get Stopwatch.
Okay, all right, I'm good.
Speaker 1 (20:25):
Welcome back everyone .
Today I get to talk aboutsomebody I really, really admire
and love as a historical figure, and I get to do it with one of
my favorite scholars, Dr Preece.
So, Dr Preece, welcome back,Thank you, liz, today we're
talking about George Washington,so can you talk to us about the
role that George Washingtonplays at the Constitutional
(20:48):
Convention, the role that GeorgeWashington plays at the
Constitutional Convention.
Speaker 2 (20:56):
Thank you, liz, another great question you've
posed.
Of course Washington is famousin a certain way not as famous
and well-loved now, 250 yearsafter the founding, as he was at
the time and for much of the19th century.
But he does still have thetitle of the founding father for
those of us who pay attentionto him and admire him.
But this is a role, hisimportant role at the
(21:19):
Constitutional Convention itselfin Philadelphia in the summer
of 1787, that we don't pay muchattention to, even those of us
who are fond of GeorgeWashington and admire him.
And there are good reasons forthat.
James Madison is known is giventhe sort of honorary title of
the father of the Constitution.
(21:40):
He's absolutely crucial at theConstitutional Convention in
1787.
His notes, published long, longlater because the deliberations
were secret it was a rule ofsecrecy give us the most full
account of what happened at theConstitutional Convention.
So all praise to James Madisonand he deserves the title of
(22:02):
Father of the Constitution.
And then of course, there areother delegates we know from not
just Madison's notes but othernotes, who spoke a lot and
played crucial roles, even ifthey weren't in the open debates
.
They perform crucial committeeroles Gouverneur Morris and
James Wilson and Roger Sherman,et cetera.
So we tend to overlook thisbecause in the notes Washington
(22:23):
doesn't say a lot, doesn't say alot.
So give me a moment here toexplain why and I'm going to
cite a scholar from YaleUniversity, akil Amar,
constitutional law professor,who makes the argument
Washington is as important asMadison for producing the 17th
Amendment.
Welcome back everyone .
We have Dr Paul Carice backwith us today to talk about
Baron de Montesquieu.
Dr Carice, our question todayis how did Montesquieu's idea
about separation of powersinfluence our Constitution?
Speaker 2 (00:16):
Thank you, liz.
This is a really importanttopic.
It fits with topics andquestions we posed in earlier
episodes about philosophy andphilosophers are very big ideas
shaping the Declaration ofIndependence and the argument
for revolution and independence,shaped now to be thinking about
(00:37):
our constitutional order as awhole from the founding period
being shaped by leadingphilosophers.
This is an Enlightenmentphilosopher, as the term is used
, a modern philosopher ofliberal, democratic politics.
Montesquieu is a Frenchman.
He is a lawyer who becomes ajudge, but he becomes more
(01:01):
fascinated as a young man withphilosophy than with being a
lawyer and a judge and as anobleman he has enough money to
devote himself to philosophy andhe becomes quite famous as a
fairly young man and that giveshim for a book.
He writes a kind of novel, asatire about French politics and
(01:21):
European life, about Frenchpolitics and European life, and
that gives him a little moretime to write a huge work that
he spends 20 years writingcalled the Spirit of Laws or the
Spirit of the Laws, and thisbook by Montesquieu was the
textbook, in effect, ofpolitical science for what
becomes the American founders'generation.
(01:43):
It's published in 1748 inFrance.
It's very quickly translatedinto English.
One reason it's translated intoEnglish is.
He has two long chapters inthis very big book that praise
the English constitution andEnglish politics because of its
devotion to liberty.
And the English like this theylike a French nobleman who's a
(02:06):
baron and a judge.
They like this, and so it getstranslated very quickly, by 1750
, and then it's in the Americancolonies very quickly, and so by
the time that, think of peoplelike John Adams and Thomas
Jefferson and Alexander Hamiltonand James Madison going to
college in the American colonies.
Well, this is like the new hotstandard kind of textbook of
(02:32):
what the science of politics is,of what political philosophy is
for.
Very clearly, it's a huge book.
He's being very comprehensive,it's almost encyclopedic, about
monarchies and republics andhe's very against despotism and
authoritarian politics.
But he's, you know, for theAmerican colonists this is great
(02:54):
because he's talking aboutpolitics of liberty and the rule
of law, supporting liberty andconstitutionalism.
So he becomes, as the AmericanRevolution is breaking out, we
think, well, john Locke is themost important philosopher and
there's a way in which Locke ismore important than Montesquieu
on the arguments aboutrevolution.
But Montesquieu is always therein the 1760s, 1770s, 1780s.
(03:20):
So he's I think the scholarsare correct to argue he's the
single most importantphilosopher of the entire
founding period.
And so here's the separation ofpowers question.
If you think about theDeclaration of Independence, you
read the politics set the rulesand guardrails so that these
(03:49):
ideas of individual rights thatwe have, these ideas of equality
among all people that we have,are actually being practiced and
enforced and observed byeverybody.
And Montesquieu's argument isyou need to disperse the powers,
you need a kind of division oflabor if this politics of the
(04:14):
rule of law and ordered liberty,constitutional government is
actually going to work.
So the three powers and we getthis formula from Montesquieu,
not from any other philosopherthe three powers are you want a
legislative power, a body ofrepresentatives who make the
(04:35):
laws.
But how do they do that?
They argue with each other,they deliberate with each other
to make the laws, and then we'lltalk more about how complicated
Montesquieu thinks that shouldbe.
Then an executive power, a, agovernor, a president, you know,
ministers, things like that,people who will take the laws
and execute them, implement them, administer them, make sure
they're actually being followedby everybody, including
(04:58):
everybody in the government, aswell as the citizens and
foreigners and others.
So we've got two powers nowlegislative power, making the
laws, executive power.
And then he is definitely theinnovator, maltescu is the
innovator of this third one,because John Locke talks about
(05:20):
an executive power and alegislative power.
Legislative power is first forLocke, of course, then executive
power, but he doesn't reallytalk about judges or judiciary
very much.
Locke doesn't.
Montesquieu makes a big dealout of the judicial power of
courts.
It's not.
He doesn't invent the idea.
I mean, you know Aristotle'stalking about courts and judges
and juries and things like that.
Montesquieu just says if youwant a politics of liberty and
(05:47):
an ordered liberty under therule of law and
constitutionalism, you must havean independent judiciary.
Now it's the third power, it'sthe least powerful power, it's
the least political power, butit's got to be there.
And so that's the separation ofpowers, theory, philosophy that
Jefferson Adams, adams, hamilton, madison, john jay, they're all
reading this in college in away, and it's there from 1775,
(06:10):
right before we forget this,before the declaration of
independence in july of 1776,the second continental congress
is saying to the colonies youare in effect states already,
you should, should be draftingconstitutions.
You're not colonies anymore,Because you know, especially
after Lexington conquered, shotshave been fired, you know.
(06:30):
So get serious, folks.
And there are states that draftconstitutions by late 1775 and
early 1776.
And what do they do?
Separation of powers this stateshall have a government of this
kind and it shall have alegislative branch.
It shall have an executivebranch, it shall have a judicial
branch.
It's Montesquieu right.
(06:51):
So I'm not saying Locke is notimportant at the time of the day
.
Right, locke's very important,but he's not the only important
philosopher.
And the declaration itself saysthe king and the parliament
have violated this principleabout the legislative power and
this principle about theexecutive power and this
principle about the judicialpower and and the way the powers
are supposed to interact and beseparated from.
(07:12):
So and in fact god is referredto, the divinity is referred to
as a legislator, an executiveand a judge, if you think about
the references to a divinity inthe Declaration of Independence.
So this is a big idea, thisseparation of powers idea.
We kind of take it for grantedand we kind of demean it.
(07:34):
Oh, you know, these are thestupid questions.
You get on a quiz about howmany branches of government are
and who cares?
It's just mechanics, it's justwrong.
This is foundational for, touse Malteski's phrase for his
book, the spirit of the laws,the whole spirit and philosophy
of our form of politics and law.
Speaker 1 (07:57):
So why did Montesquieu then think that kind
of this complicated structureof institutions would be helpful
to or for free politics, ratherthan a hindrance, because it
would almost seem to somebodywho's maybe not familiar of?
Why are you giving all of thesedifferent branches, all of
these different you know jobs?
(08:20):
Why can't Congress or thelegislator make laws and then
make sure people are followingthem?
Speaker 2 (08:27):
Yes, this kind of concern about the inefficiency
or how complicated this is, hardto understand, hard to operate,
hard to get things done right.
This criticism really arose inthe late 19th century and the
20th century.
Among American thinkers.
Woodrow Wilson is probably themost famous as a professor of
political science, before hebecomes president, saying that
(08:50):
this is a kind of Newtonianmechanics, you know action and
reaction, and it's toocomplicated a machinery.
We need something more organic.
And he of course becomespresident.
But as a political scienceprofessor he's saying a single
president collaborating with alegislature, the way the British
do it right, a prime ministerwho's actually a member of the
(09:12):
parliament, of legislative body,that's much more organic and
efficient, gets things donequickly.
So Maltescu knows about thosearguments and is insisting that
the principle of liberty isimportant and he's very worried
about concentrating too muchpower in any one branch and
there's a negative, so to speak,part of that preventing
(09:34):
something bad from happeningDespotism, authoritarianism,
actually majoritarianism.
You know you have a verypopular figure, he or she wins
an election and then they justwant to change everything right
and minority views then gettrampled upon and minority
rights get trampled on.
So is very concerned to arguethe advantages of making a more
(09:57):
complicated form of government.
And the negative side isprevent too much power being
concentrated in any one branch,especially in a king, a monarchy
or president or a popularfigure, right?
So that's the kind of negative,preventative side.
The positive side is this ideaI mentioned earlier a division
of labor.
We do this all the time in life, right?
(10:18):
Wouldn't you be a better judgeif you focused on judging?
You know, as complicated enoughas it is, knowing all the law,
knowing all the case law,knowing how lawyers argue and
think, and having and you're nottrying to do five jobs, okay,
and this is true all over ourlives Wouldn't legislators do a
better job if they focused onthe very complicated and
(10:41):
important task of representing apopulation of citizens from
different places and differentpoints of view and arguing with
each other, listening to eachother, arguing with each other
and here Montesquieu, it's sortof the principle.
You could make fun of it themore complicated the better.
He likes what the English cameup with across hundreds of years
of constitutional development.
(11:02):
This legislative branch.
The English say we're going tosplit it in two, we're going to
have an upper house and it's aconstitutional monarchy.
So there's an aristocracy, aclass of nobles.
We're going to have an upperhouse for the nobles, the House
of Lords, and we're going tohave a lower house with more
members in it for the commons,the commoners, the common people
(11:24):
.
And Montesquieu says this is avery good idea.
And of course the Americansthen take this over and saying
yes, we want an upper housewhich becomes the Senate.
In the state constitutions theyhave different names an upper
house, smaller, differentfunctions, and then a larger,
more representative, you couldsay, more democratic branch in
the legislature.
(11:44):
So the more complicated thelegislature is, the better,
because now you're doing betterwork in representing different
points of view and there's gotto be more argument and then
more compromise, and so therethe legislative power.
Moteski's idea is he likes theEnglish and wants to sort of.
You know you have to do it inyour own way wherever you are in
(12:04):
the world, right, but here'sthe English model.
You will get out of thatcomplicated legislative process
bicameralism, we call it twohouses.
You will get more argument,more space for minorities to
make their arguments or minoritypoints of view, and more
compromise, and then you canthink on the negative side, the
laws will be less dumb, lessstupid, you know, less unjust,
(12:29):
or you could think on thepositive side, these laws will
be smarter, a little bit wiser,a little bit more just and have
a larger consensus majoritybehind them.
Ok, so legislative power willbe better if that's separate
from the others, executive powerwill be.
That, you know, is action, theprinciple of action.
If an executive can focus onaction, not on having to sit
(12:51):
around and deliberate and listento people and argue that'll be
done better, and then thejudging power is kind of the
safety valve for these two, andit's he's really the innov in
this.
You want a safety valve, beyondthe lawmakers and the people
who execute and enforce the laws, for the average citizen or
association or corporation tosay wait a minute, I'm not
(13:15):
guilty of violating the law.
A prosecutor from the executivebranch has come after me, right
?
Or a fellow citizen or anothercorporation or somebody, some
entity is violating the law andthe executive is not doing
anything about it and I need tofile a lawsuit, right.
So this leads to the greatAmerican principle I mean it's
got to be written somewhere inour founding documents the right
(13:37):
to sue.
You know, I mean this is thegreat American thing, right,
that we have lawyers and we cansue other people, people, right.
So this is Montesquieu's idea Ifyou divide, you'll get better
functioning in each of the threecrucial functions legislating,
executing, executive andenforcing.
And especially there, by theway, I should mention
(13:59):
international affairs.
Right, president or primeminister is the chief executive
about foreign affairs anddefense and security and war?
You need speed there, notdeliberation.
You know you need to get stuffdone quickly.
And then the judicial power tobe this kind of safety valve and
then to sort of wrap it all up.
(14:21):
That's all the positivedivision of labor kind of
argument I mentioned.
The negative don't concentratepower.
Montesquieu is also saying thatthis will be a better form of
politics for everybody if thepowers are not entirely separate
(14:43):
from each other.
A little bit mixed with eachother, because this is a paradox
from each other.
A little bit mixed with eachother because this is a paradox.
This is how you keep themseparate.
They can kind of protect eachother.
They can protect themselvesfrom the others by being a
little bit mixed with the otherone, right?
So the president has a vetopower.
In our constitutional system, agovernor or a president has a
(15:04):
veto power against thelegislature.
He can't strike down every law,the veto can be overridden, but
it kind of, you know, if theexecutive thinks, hey, wait a
minute, you folks in thelegislature are way out of your
lane, you're way out of yourbounds, it's a kind of
protection, defensive mechanismand the legislature, well, can
prevent the executive from doingthings by not funding the
(15:27):
executive or by overridingvetoes or by turning down
appointments that the executivesuggests.
The judiciary has this power,which it's not literally written
in our 1787 Constitution butwas implied at the
Constitutional Convention.
We call it judicial review, apower of constitutional review.
Right, if they think thelegislature and the president
have gone out of their bounds,gone out of their lane and
(15:48):
written a statute or some otheraction that violates the
constitution, the judges can say, hey, wait a minute, that's
null and void, right?
So this kind of a little mixingof the powers, just enough to
keep them separate and and makesure the other players in the
game are following the rules.
So you could say the separationof powers is generally the
(16:10):
positive principle, the positivedivision of labor.
Each of these functions will bedone better if separated.
And checks and balances, whichis a different principle but
clearly related, is the kind ofnegative principle, the checking
principle, to help with theseparation and to generally help
with this issue of not lettingany one branch or center of
(16:31):
power have too much power.
So that's the larger argumentand again Montesquieu spells
this out in the Spirit of Laws.
He uses the English Constitutionas a case study, but he's
making his own philosophicalarguments about it along the way
, about it along the way, and itends up being the concise
(16:55):
statement of the Englishpolitical constitutional culture
.
There's no one in the Englishlanguage who states it so
concisely and philosophically.
Blackstone after Montesquieuwrites commentaries on the laws
of England and cites Montesquieuas the first philosopher,
modern philosopher he citesright.
So it's a funny thing.
We know this in life, right?
You travel abroad and you learnsome things about another
(17:18):
country, but you also see somethings about your own country by
having a.
And Montesquieu lived inEngland for about 18 months and
then wrote this study later andit ends up being this wonderful
concise statement and it justgoes like wildfire.
In the American colonies theythink that's what a
constitutional government ofliberty is.
And so my hunch is this wordright in the middle of the
(17:41):
Declaration of Independence.
We don't pay a lot of attentionto it a charge where the Second
Continental Congress sits inJefferson's draft.
Almost in this way, he, theking, has joined with others to
violate our constitution in thesingular Jefferson had our
constitutions plural.
And the Congress says SecondContinental Congress says no,
this violates our constitution,it violates the constitution of
(18:04):
liberty.
What does that mean?
That's Montesquieu'sconstitution of liberty.
His explanation this is whatthe English political culture
and Constitution of Liberty is.
The king and parliament areviolating it.
So that's Montesquieu'sinfluence right there in 1776.
And so look, if you don't likethis form of government, it's
too complicated and you want tomake your arguments against it,
(18:27):
the challenge for you is youbetter read Motsku and you
better read Bloxton and youbetter read the federalist
papers and you better know thevery big, long thinking and
arguments defending this kind ofconstitutionalism which is in
our federal constitution and inalmost all the state
constitutions have thetripartite separation of powers.
(18:48):
So you better know about allthis and then have your
criticisms and complaints.
Speaker 1 (18:54):
And I appreciate that you brought up the Federalist
Papers, because that'll be inlater episodes.
So as you're talking about, youknow, separation of powers, I'm
thinking about Federalist 51and thinking about Federalist 70
and Federalist 78 when we talkabout the executive and the
judiciary, and I know we havesome really great episodes
coming up on that.
So Montesquieu really didn'tjust have a little bit of
(19:17):
influence, there was a lot ofinfluence and we see that.
Dr Carice, as always, thank youso much.
Speaker 2 (19:25):
Thank you very much, Okay next one.
Speaker 1 (19:29):
See, I warned you, I was going to go on too long.
You're totally fine because youare answering.
But you but you kind of did,and I was actually looking, as
there is a question on stateconstitutions that Sean is doing
, so that that question willeventually get answered.
So, yeah, no, that was that'sgoing to tie in so nicely,
(19:52):
because I already recorded withAlan Gibson and he did
Federalist 10 and 51.
So a lot of what you said isalready going to marry into his.
So it's going to be yeah,Alan's a good guy.
Speaker 2 (20:01):
That's terrific.
Yeah, okay, okay, let me pullup my notes for yes, hopefully I
won't go 19 minutes on GeorgeWashington, I'm excited about
him too.
So, yeah, okay, okay, let mepull up my notes for.
Speaker 1 (20:08):
Yes.
Speaker 2 (20:09):
Hopefully I won't go 19 minutes on George Washington.
Speaker 1 (20:11):
George Washington.
Speaker 2 (20:12):
I'm excited about him too, so got to be careful.
Speaker 1 (20:15):
I love George Washington.
Speaker 2 (20:17):
All right, let me just get Stopwatch.
Okay, all right, I'm good.
Speaker 1 (20:25):
Welcome back everyone .
Today I get to talk aboutsomebody I really, really admire
and love as a historical figure, and I get to do it with one of
my favorite scholars, Dr Preece.
So, Dr Preece, welcome back,Thank you, liz, today we're
talking about George Washington,so can you talk to us about the
role that George Washingtonplays at the Constitutional
(20:48):
Convention, the role that GeorgeWashington plays at the
Constitutional Convention.
Speaker 2 (20:56):
Thank you, liz, another great question you've
posed.
Of course Washington is famousin a certain way not as famous
and well-loved now, 250 yearsafter the founding, as he was at
the time and for much of the19th century.
But he does still have thetitle of the founding father for
those of us who pay attentionto him and admire him.
But this is a role, hisimportant role at the
(21:19):
Constitutional Convention itselfin Philadelphia in the summer
of 1787, that we don't pay muchattention to, even those of us
who are fond of GeorgeWashington and admire him.
And there are good reasons forthat.
James Madison is known is giventhe sort of honorary title of
the father of the Constitution.
(21:40):
He's absolutely crucial at theConstitutional Convention in
1787.
His notes, published long, longlater because the deliberations
were secret it was a rule ofsecrecy give us the most full
account of what happened at theConstitutional Convention.
So all praise to James Madisonand he deserves the title of
(22:02):
Father of the Constitution.
And then of course, there areother delegates we know from not
just Madison's notes but othernotes, who spoke a lot and
played crucial roles, even ifthey weren't in the open debates
.
They perform crucial committeeroles Gouverneur Morris and
James Wilson and Roger Sherman,et cetera.
So we tend to overlook thisbecause in the notes Washington
(22:23):
doesn't say a lot, doesn't say alot.
So give me a moment here toexplain why and I'm going to
cite a scholar from YaleUniversity, akil Amar,
constitutional law professor,who makes the argument
Washington is as important asMadison for producing the 17th
Amendment.
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