JUST AS JOHN LOCKE’S influence on the Founders and the Declaration of Independence was profound, French philosopher Charles de Montesquieu, who lived from 1689 to 1755, was enormously important to the Framers of the Constitution, particularly respecting the form of government and separation of powers. However, in his seminal and extensive work, The Spirit of the Laws, Montesquieu also wrote at length about the nature of man and societies.
Montesquieu wrote of the nature of governments. “There are three kinds of government: REPUBLICAN, MONARCHICAL, and DESPOTIC. To discover the nature of each, the idea of them held by the least educated of men is sufficient. I assume three definitions, or rather, three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established laws; whereas, in despotic government, one alone, without law and without rule, draws everything along by his will and caprices” (1, 1, 2). In republican government, Montesquieu explains, the people must be able to vote in elections.
virtue is mostly impossible in a monarchy and nonexistent under despotism, but is crucial to sustain a republican government. “Virtue, in a republic, is a very simple thing: it is love of the republic; it is a feeling and not a result of knowledge;
republican government requires fixed, established laws adopted by the representatives of the people, which create a culture of support for the republic.
Montesquieu observed, “democracy has to avoid two excesses: the spirit of inequality, which leads it to aristocracy or to the government of one alone, and the spirit of extreme equality, which leads it to the despotism of one alone, as the despotism of one alone ends by conquest”
Montesquieu considered excessive taxation and the confiscation of private property an assault on equality—that is, the individual’s liberty and rights. Montesquieu’s view of equality, therefore, is consistent with Locke’s.
Montesquieu also viewed commerce as essential to the character of republican government. “[T]he spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.…” (1, 5, 6) Furthermore, commerce helps promote republican mores in other countries.
Commerce also encourages prosperity.
despotism begets hardship and poverty. “As for the despotic state, it is useless to talk about it. General rule: in a nation that is in servitude, one works more to preserve than to acquire; in a free nation, one works more to acquire than to preserve”
Industrious men and societies are also to be encouraged.
Montesquieu, like Locke, explained that commerce, industriousness, and laws that inspire them require a moderate or republican government, which, in combination, preserve and improve the society. Alternatively, “Every lazy nation is grave; for those who do not work regard themselves as sovereigns of those who work”
Montesquieu, always mindful of history’s preference for tyranny, argued that political liberty exists within the context of a constitution—a fixed, established law. The constitution must institute a governing structure that controls the governors. He proposed that the three powers of government—that is, the legislative, the executive, and the judicial—be divided into three separate entities. In this not only does Montesquieu add significant clarity to Locke’s notion of division of powers, but his words have a major influence on the future constitution of the American republic, as they did in the state constitutions.
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.
Montesquieu’s concern is with the imprudence, and worse, the danger of republican government attempting to transform the civil society—including superseding the effects of religion, family, commerce, traditions, customs, mores, etc.—through legal coercion. In
Montesquieu also believed that republican government does not work well over large regions, for the people are too diverse, their interests are too dissimilar, and their connection with the government is too distant.
Montesquieu argued that a republic has the best chance of surviving if it consists of states that are also republican in nature.
Montesquieu also rejected pure democracy, or extreme equality, where the public makes claims on the liberties and rights of the individual. He observed that property rights, commerce, and trade create wealth and economic progress, which benefit the individual and society. They also encourage peace between nations.
Montesquieu’s view of man, man’s nature, society, the law, and government would undoubtedly have led him to conclude that utopianism is despotism. He argued for liberty, equality properly understood, moderation, tolerance, and tradition. In political freedom, he believed the individual and society would prosper. Among his greatest thoughts were those aimed at the means of diminishing the opportunities for tyranny in government. Hence, Montesquieu’s advocacy for republicanism, constitutionalism, justice, and the rule of law. In The Spirit of the Laws, Montesquieu would provide a road map for the American constitution, in which a system of government is established to represent a diverse and dynamic society, and the individual lives free from the cruelty and domination of others and the government itself.
THE TASK FACED BY the Framers of the Constitution was colossal. It made great sense that they would borrow from Charles de Montesquieu in developing a new government. He is believed to have been the most widely cited philosopher in America during the 1780s.1
Clearly, one of Montesquieu’s most important contributions to the Constitution was his argument in The Spirit of the Laws for separate governing powers and against centralized, consolidated authority.
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.…”
Madison argued that the structure would work. In Federalist 45 he wrote, “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.”
Separation of powers, the enumeration of powers, and the explicit provision for state sovereignty were essential characteristics of the new constitutional republic.
As part of the Bill of Rights, Congress approved, and the states ratified, the Fifth Amendment, which included the “Takings Clause” of the Constitution. It provides, “[N]or shall private property be taken [by the government] for public use, without just compensation.”