The Founders' Constitution
Volume 1, Chapter 11, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch11I.html
The University of Chicago Press
11
Balanced Government
CHAPTER 11
Introduction
Balanced or mixed government implies simultaneously a distinction from its frequent associate, the separation of powers, and a rejection of its opposite, simple government. The case for the one involves, then, a consideration of the cases for the other two. Montesquieu's frequent recourse to arguments for a balanced government without making any sharp distinction from separation of powers suggests that the two have similar ends, that one may reinforce the other, or that one may act to mitigate the extremes implicit in the other. An examination of some of the political arguments that preceded the writing of the Constitution discloses the extent to which each of these explanations carried weight. Similarly, an examination of the case for simple government--a case that the proponents of the Constitution rejected outright and with which even most critics of the Constitution were not comfortable--discloses contemporary reasoning about both the character of the American people and the general requirements of popular government.
James Harrington (no. 2) surely was not the originator of the notion that a well-ordered commonwealth requires some kind of internal balance of its heterogeneous parts. That notion was well known in classical antiquity and given vivid restatement by Machiavelli (no. 1). But Harrington's formulation of the problem--"how a commonwealth comes to be an empire of laws and not of men"--won the minds of the Americans and shaped their political discourse. For Harrington it was a clear and simple conclusion that popular government is both the most reasonable form and the one most conducive to furthering the interest of mankind. And yet it was no less clear and true that each individual is most moved by "the nearness of that which sticks to every man in private." Given the primacy of private interest and the rightness and indeed urgency of the public interest, the task is to secure the latter without futilely or tyrannically trying to extirpate the former. To prevent factious scrambling, Harrington proposed a system whereby one part debates and divides, yet another part resolves or chooses, and still another executes. The first two orders constitute the legislative: a senate whose claim to divide "the cake" is based on being made up of a "natural aristocracy diffused by God through the whole body of mankind" and the assembled representatives of the people as a whole whose self-interest exercised in choosing the portions is coterminous with the interest of the commonwealth. The third is the chief magistrate.
This aspect of Harrington's complex scheme of balanced government was altered, developed, and reworded by his successors. Joseph Addison found reason to congratulate his countrymen on having a legislative power that mirrored the differing "Ranks and Interests" of the society at large. Accordingly, each part of the people had its corresponding part in the legislative to care for their shared interest. Nothing less would do to guard against the despotic use of power. (See Spectator, no. 287, 29 Jan. 1712.)
For Hume (no. 3) the very possibility of a science of politics turned on the possibility of transcending or overcoming "the casual humors and characters of particular men." How a "republican and free government" is constituted matters much more than the idiosyncrasies of the governors. Very much, then, turns on the constitutional checks and controls that make it "the interest, even of bad men, to act for the public good." Not least important is the role of a chief magistrate powerful enough to "form a proper balance or counterpoise to the other parts of the legislature." For Hume, in contrast to Harrington, the executive's share in the legislative function seemed to make him a part of the legislative branch; balance, not separation, was intended. And yet, it was as an executive that the king truly balanced or restrained the Commons, an executive who cajoled and dangled gifts before the avaricious and, with the support of "the honest and disinterested part of the House," had so far at least been able to keep the system on an even keel. It was the joinder of the crown and the ministry through corruption that unbalanced the British government under George III.
The colonials in British North America on the whole took Hume's self-celebratory account as offering little by way of solution to their problems. Some, like Richard Henry Lee (no. 6), admired the theory but not its British execution. Others, like the anonymous author of The People the Best Governors (no. 8), denied the very premise of the theory of mixed or balanced government: the mutual checking of different social orders. The more the control of the people's business is in their own hands, the better; the more immediately governmental authority is dependent on the people, the safer will be the people's liberties. Similarly, the Pennsylvania author of Four Letters on Interesting Subjects (see ch. 17, no. 19) doubted whether the benefits of a balanced government outweighed its costs. Was the quality of deliberation enhanced, or the dispatch of public business, or the promotion of the common interest? Still others, like Tom Paine in Common Sense (see ch. 4, no. 4), rejected British pretensions on grounds of both theory and practice. "I draw my idea of the form of government from a principle in nature, which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered." Viewing the practice of the day, Paine saw a crown which had succeeded only in "eat[ing] out the virtue of the house of commons" through its corrupting influence, thereby poisoning the republican part of the British constitution. Here was no model for a people with freedom to choose the form their government should take.
And yet, Farmer asserted (no. 9), a simple republic was quite out of the question. To be sure, all political authority in America now had to derive from the sovereign people, but that people neither wished nor was fit for "a simple Republick." In part their taste had been formed by the habits of living under the British monarchy: "the genius of the Americans . . . is of a monarchical spirit." But beyond that, the Americans were not simple republicans; there were among them a "great distinction of persons, and differences in their estates or property." Still, these were not the hereditary orders of an England. To balance the powers of American orders in a context of popular sovereignty would be the great task at hand.
Balance American Style
To this problem John Adams (no. 10) devoted his thought, his energies, and his pen. The result--a three-volume explosion triggered by Turgot's proposal that Americans abandon British models for a unicameral assembly--made the case for a balanced or mixed government based not on social orders but on natural orders. To ignore "the utility and necessity of different orders of men" was to ignore what the keenest minds and closest observers had found to be universally true. Adams, like Harrington, saw a natural aristocracy arising out of the natural differences among men; both asked how that aristocracy might be rendered useful and safe. Rejecting as insufficient the classical reliance upon habituation through education and discipline as the way to devoted citizenship (he saw this as too "great an end" for a large nation), Adams turned instead to institutional checks and balances. The choice is either the jealous counterpoise of constitutional parties, or a recourse to simple monarchy and a standing army to put an end to factious turmoil and to liberty itself.
Balanced government in America, then, would resemble earlier examples in some respects, yet have its own distinctive character as well. Although contemporaries might disagree over the degree of homogeneity and equality in the new United States, it was clear enough that the country had no permanent social orders. For the near future, at least, America could supply no analogues to the patricians and plebeians of Rome, the nobility and common folk of Britain or France. And yet, for all that, America too had its few and its many, its haves and its have-nots. In America too could be heard the conflicting claims of great interests of East and West, North and South, as they pressed against one another in the political forum. To contain these mighty forces--at least to the point where they could not capture the authority and power of government for their particular purposes, or bring down the entire political system in the attempt--would require all the ingenuity of the age. In the mind of an Adams or a Madison the need for balancing great and greatly diverse forces led to a search for every sort of useful institutional device and auxiliary support. Among other things Adams looked to a second legislative chamber where the able and ambitious few might be quarantined, so to speak (see ch. 12); to a monarchical principle in the shape of a unitary executive who might hold the balance between the many and the few. Madison sought to mitigate the destructive ferocity of contending interests and enthusiasms through the checks of a complicated governmental structure (see ch. 10), and by making use of the sheer size and diversity of the new country. Others, too, sought to have the two branches of the legislature mirror, respectively, the persons and the property of the nation, in recognition of the belief that each must have its voice but neither could unqualifiedly have its way (see ch. 13).
But critics of the proposed Constitution remained unpersuaded of either the analysis or the solution, or both. Had there been, could there ever be, a government such as Adams held forth as a model? Further, Centinel wondered (no. 11), "how is the welfare and happiness of the community to be the result of such jarring adverse interests?" Rely, rather, on the governors' sense of accountability to the people; and that can best be secured through "a simple structure of government" where the people easily can pinpoint the culprits who would ignore or betray their good. The Federal Farmer (no. 12) doubted that any real balance was possible in a bicameral legislature composed--as it necessarily would be in America--of "the same kind of men." Without further alterations and support, "the partitions between the two branches will be merely those of the building in which they sit." Patrick Henry took up this theme in the Virginia Ratifying Convention (no. 13): "Tell me not of checks on paper; but tell me of checks founded on self-love." The people's liberties were less safe under the proposed Constitution, this ardent republican exclaimed, than under the British monarchy, for there at least the hereditary nobility have a stake in maintaining a balance between king and Commons; their continued existence depends on it. What corresponding incentives did the American analogues possess? James Monroe, too, contrasted the balance in the Roman and English constitutions, based as they were on social orders, "each of which had a repellent quality which enabled it to preserve itself from being destroyed by the other two." The American division of power had no such basis and, indeed, no such intention: "a more faithful and regular administration" was the end in view. Like Henry, Monroe could "see no real checks" in the Constitution that would prevent a coalition of the branches of government and encroachments on the rights of the people (no. 15).
John Marshall's response in the same convention trod a narrow line (no. 14). To be sure, "In this country, there is no exclusive personal stock of interest." But that did not mean that there were no checks in the Constitution, or that reliance was placed totally upon the public-spiritedness of a few luminous characters. There were in fact powerful checks. To begin with, there would be interweaving of interests so that when the individual "promotes his own, he promotes that of the community." There is little reason to doubt that Marshall saw this blending of interests taking place as much within the society as a whole as within the several constitutional orders called for by the new framework of government. Further, there was the check of "the American spirit," the jealousy of a republican people, heedful of its powers and rights and inclined to keep its agents on a short tether.
From the point of view of Madison's presidential years, Gouverneur Morris and John Adams reached different conclusions about the effectiveness of the Constitution's balance. The issue, Adams insisted (Letter to John Taylor, Apr. 1814), was not "whether an exact balance has been hit," but whether the Constitution with its "refinements upon refinements" did in fact form "a complication of checks and balances." He thought the evidence that it had incontestable. Morris (no. 17), while denying despair, found little to please and still less to look forward to. The dilemma, presented to the Philadelphia Convention and noted subtly by Monroe at the Virginia Ratifying Convention, had remained unresolved. The balance of the system turned among other things on the Senate's being an effective counterpoise; that in turn required that the Senate be distinctive; the distinctiveness of the Senate depended ultimately on the influence of the states; and yet "a more perfect union" could be achieved only by reducing the weight and prominence of the states. For want of an independent pair of hands to hold the scales between national sovereignty and state independence, the very balance of the national government itself remained in jeopardy. There was little expectation that the federal judiciary would afford that independent judgment.
The Founders' Constitution
Volume 1, Chapter 11, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch11I.html
The University of Chicago Press
