Paul Rahe @ BigGovernment: "The Survival of the Republic: A Second Reason for Reading Montesquieu"

In earlier posts – here and here – I drew attention to the pre-eminence of Charles-Louis de Secondat, baron de La Brède et de Montesquieu in and for a time after the eighteenth century, and I suggested that at least one of the reasons for his pre-eminence is still pertinent today. There are other such reasons, which I addressed at length in Montesquieu and the Logic of Liberty and in Soft Despotism, Democracy’s Drift, and they, too, deserve consideration. I will discuss one such here.

Montesquieu’s The Spirit of Laws is a large book, and it is difficult to know which elements within it are the most salient. There is, however, one passage in which Montesquieu tells us outright that what he is about to say is fundamental to everything else that he says. “I,” he writes near the end of the first of the work’s six parts, “shall be able to be understood only when the next four chapters have been read.” Then, in those four chapters, he argues that forms of government are closely related to the size of the territory that must be governed. Republics are well-suited to polities small in extent; monarchies, to polities of intermediate size; and despotisms to polities great in size.

The pertinence of this claim to the situation of the American Founding Fathers should be obvious. Especially in modern times, this would appear to mean that republicanism can only be viable in mountainous places such as Switzerland, where the geography virtually rules out the establishment of anything but tiny states. It is, then, in no way surprising that the debate between the Federalists and the Anti-Federalists turned to a considerable extent upon the question whether it is somehow possible to establish a viable republic on an extended territory.

The Anti-Federalists tended to cite the chapter in The Spirit of Laws asserting that republics must be small. The Federalists made two points in response. First, they argued that the individual states – apart, perhaps, from Rhode Island – were by this standard too large to be republics. And, second, they pointed to the early chapters of the second part of The Spirit of Laws, where Montesquieu observed that, in a world dominated by monarchies of intermediate size and despotisms exceedingly large in extent, small republics might be able to provide for their own defense and make themselves thereby viable if they joined together in a federation of polities similar in character, as the Swiss and the Dutch had done. It was Montesquieu that Alexander Hamilton, James Madison, and other Americans first studied when they contemplated this question.

This aspect of the situation is well-known. What I am about to say is, however, rarely noted. Federalism was not the only contribution that Montesquieu made to sorting out the problem posed by the establishment of a republic on an extended territory. In The Spirit of Laws, Montesquieu describes England in passing as “a republic concealed under the form of a monarchy”; and though he devotes the two longest chapters of the work to a study of England’s constitution and of the fashion in which it shapes the mores, manners, and national character of the English, he never – in any passage – says a word regarding the extent of territory to which the English form of government is suited.

Montesquieu’s silence in this regard can hardly be due to an oversight on his part – for he has earlier made it clear that this issue is paramount, and it was one of his principles as a writer that “silence sometimes expresses more than any discourse.” Moreover, at the very end of the book in which he discusses the constitution of England, he writes, “it is not necessary always to so exhaust a subject that one leaves nothing for the reader to do. The task is not to make him read but to make him think.” The inference that we should draw from Montesquieu’s silence on this particular occasion, and the inference which the Founding Fathers tacitly drew, was that a republic on the English model – equipped with a well-designed separation of its legislative, executive, and judicial powers – can be established in a territory of very considerable extent, as was, in fact, the case with England itself.

Of course, the Americans hedged their bets by embracing both of Montesquieu’s principles. They established a federation, made up of comparatively small republics, and they adopted a separation of powers both within the federal government and within the state governments, fortifying themselves in this fashion against the prospect that the sheer size of the territory encompassed by the United States of America would occasion frequent emergencies that would eventuate in a massive concentration of power in the central government.

This they did, and, of course, they did more. In the tenth number of The Federalist, as scholars have repeatedly pointed out, James Madison turned Montesquieu’s argument on its head, pointing to the fact that small republics were often subject to faction, and suggesting that religious and economic diversity on the scale likely in a polity established on an extended territory could actually serve to make it less prone to faction by reducing the likelihood that a majority faction would emerge. Just look at Rhode Island, the Federalists said; and of Rhode Island and, for that matter, Chicago, one could say the same today.

It would be tempting to suppose that the question whether one can sustain a republic on an extended territory is now closed. Thanks to federalism and the separation of powers, just such a republic has survived and flourished for more than 220 years.

But we now live in a time in which it is once again proper to raise this question – for, in the last century, frequent emergencies, both real and imagined, have eventuated in a massive concentration of power in the central government, and we have to a considerable extent abandoned both federalism and the separation of powers.

If Barack Obama finds it possible to run roughshod over the states, if he has taken over the automobile industry, and if he proposes to take over and administer our healthcare system, it is because the groundwork for the massive expansion in the administrative state that he hopes to achieve was laid by Woodrow Wilson. Herbert Hoover, Franklin Delano Roosevelt, Lyndon Baines Johnson, and Richard Milhous Nixon. It is hard to see how republican government can survive in a world of unfunded and partially funded mandates in which the federal government systematically turns the state governments into instruments of federal policy. It is hard to see how it can survive in a world in which the legislative power confers on administrative agencies the right to make regulations that have the force of law, the right to enforce those regulations, and the right to establish courts to adjudicate disputes arising from the enforcement of those regulations. To an ever-increasing degree, decisions that affect our lives are made in camera behind closed doors by women and men who are unaccountable. That is, as Montesquieu once pointed out, the very definition of despotism.

I am just finishing “The Great Upheaval” by Jay Winik which covers the period of 1788-1800 in France, Russia, and America and the inter-relations among the countries. Montesquieu is mentioned extensively, which is what brought it to mind. The thing that jumped out at me was the frustration that the population felt toward their government was largely what touched off the Terror. Although the Terror took on a life of its own (and consumed its own), the initial feeling that the ruling elite are not listening seems very similar to what is currently happening in this country.....

The problem with all these academic historical analyses is that they are totally divorced, by the exponents of them, from the critical environment in which they were created.
Many implicit imperatives were so self evident, at the time, that it was considered beneath the status of even a modestly educated person to mention.

Big mistake.

A Montesquieu, among most others, would blanche, throw up his hands in despair and walk away at the suggestions that:

---One elected, representatives felt unrestrained to govern any way they see fit, with no practicable means of arresting the tendency immediately.

--- The judicial branch could be safely assumed forever to consist of incorruptible human beings, genetically unpredisposed to the weaknesses of human nature, equally capable of interpreting precent, and immune to political or personal corruption.

--- The assumption that the ultimate power rests with the people, and all principles, precedent, and future laws are subervient to this first principle.

--- The absolute belief that a citizenry with rights, but no corresponding obligations, would never seek to enslave arbitrary segments of the population for their own benefit and comfort.

---Language would ever be allowed to be corrupted and perverted to the point that laws as applied, achieve the opposite result to what the people expected.

--- No citizens in the future would ever entertain the acceptance of the practice that elected officials would be empowered to grant themselves privileges and advantages not simultaneously available to the citizenry at large.

The list is open-ended; the potential for abuse equally open-ended.

Failure to address all these aberrations that have arisen in the last 150 years has made the current crisis almost intractable.

With our current government of apparent space aliens in charge, what are the options in the search for solutions?

What do we (the productive* citizens) do now?

* Productive ... producing wealth or a useful life's necessity in an amount that it contributes a net real and positive physical contribution to the continued existence of the republic.

Alas, this is not the 18th century, and none of the fatal flaws listed above have failed to appear, but indeed are deemed acceptable as "inevitable" products of a truly free society.

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