Sounding very much like Montesquieu, an Anti-Federalist writing under the alias Cato—and believed to be George Clinton of New York—noted, “The recital, or premises on which this new form of government is erected, declares a consolidation or union of all the thirteen parts, or states, into one great whole, under the form of the United States, for all the various and important purposes therein set forth.—But whoever seriously considers the immense extent of territory comprehended within the limits of the United States, together with the variety of its climates, productions, and commerce, the difference of extent, and number of inhabitants in all; the dissimilitude of interest, morals, and policies, in almost every one, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union, establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to you and your posterity, for to these objects it must be directed: this unkindred legislature therefore, composed of interests opposite and dissimilar in their nature, will in its exercise, emphatically be, like a house divided against itself.”18
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.”19 In Federalist 39 Madison insisted that “the proposed government … extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.…” “[States and localities are] no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere.”20 In Federalist 14, Madison observed, “It is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments which can extend their care to all those other objects, which can be separately provided for, will retain their due authority and activity.”21
Moreover, in Federalist 9, Madison accused the Anti-Federalists of misconstruing Montesquieu. “The opponents of the PLAN proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions, far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia, can by any means be compared with the models, from which he reasoned and to which the terms of this description apply.” Madison argues that if Montesquieu is read no further, “we shall be driven to the alternative, either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.… So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government and reconciling the advantages of monarchy with those of republicanism.”22
Madison then quoted directly from Montesquieu: “It is very probable … that mankind would have been obliged, at length, to live constantly under the government of a SINGLE PERSON, had they not contrived a kind of constitution, that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC. This form of Government is a Convention, by which several smaller States agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of new associations, until they arrive to such a degree of power as to be able to provide for the security of the united body.”23 Madison, therefore, relied in part on the same passage from The Spirit of the Laws as Wilson.
Although Madison was very much influenced by Montesquieu, it is clear he did not agree with Montesquieu’s view that republics need to be small in size to survive. However, in order to secure the support of the Anti-Federalists—as opposition to the Constitution was organizing in a number of states, some states were adding their own amendments to the Constitution with their ratification votes, and the Constitution’s ratification was in doubt—the Federalists agreed that several amendments to the Constitution would be offered in the 1st Congress and thereafter to the states for ratification should the Constitution be adopted. Indeed, after its ratification in 1789, when the 1st Congress met, Madison drafted and became a leading advocate for the twelve amendments that were approved by Congress and sent to the states, of which ten were ratified—becoming the Bill of Rights.
It must be noted that the key figure urging a bill or declaration of rights from the earliest days was George Mason. Mason, a delegate from Virginia to the Constitutional Convention, was the author of the Virginia Declaration of Rights. Madison’s draft of the Bill of Rights borrowed heavily from Mason’s Virginia Declaration.
Importantly, not only did the Bill of Rights, and the earlier Virginia Declaration, incorporate John Locke’s view of inalienable rights, providing one protection after another of the individual from government, but in the Tenth Amendment it sought to further address Montesquieu’s concern respecting the difficulty of republican government succeeding in large countries and the Anti-Federalist objection that the Constitution created an overly centralized and powerful federal government that threatened state sovereignty.
The Tenth Amendment, which is very similar to Article 2 of the Articles of Confederation, provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”24
However, the Tenth Amendment, standing alone, did not completely satisfy the concerns about federal usurpation of state sovereignty. The Ninth Amendment was also crucial. It was demanded by several states prior to the Constitution’s earlier ratification and provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”25 The Ninth Amendment was to be read in conjunction with the Tenth Amendment.
In fact, in his speech against the constitutionality of the Bank of the United States on February 2, 1791, Madison specifically addressed the Ninth and Tenth amendments (originally the eleventh and twelfth amendments as proposed to the states for ratification), referring to them as “explanatory amendments”—that is, as Professor Kurt T. Lash explained, providing “the proper rule of interpretation, implied in the structure of the Constitution, represented by the Federalists to the state conventions, and demanded to be made express by those same conventions.…”26
Madison reasoned: “The explanatory amendments proposed by Congress themselves, at least, would be good authority with them [the state proposals]; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for [in establishing the Bank of the United States]. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. He read several of the articles
proposed, remarking particularly on the 11th and 12th. [T]he former, as guarding against a latitude of interpretation—the latter, as excluding every source of power not within the constitution itself.”27 Madison concluded: “[I]f the power were in the constitution, the immediate exercise of it cannot be essential—if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation, levelling all the barriers which limit the powers of the general government, and protect those of the state governments.”28
The Ninth and Tenth amendments, treated as mostly superfluous today, were fundamental to the Constitution’s ratification and interpretation. Moreover, it is undeniable that the Constitution would not have been ratified but for a bill of rights, including these two amendments. Clearly, the most consequential Anti-Federalists and Federalists, at the federal and state levels, were of one mind in securing state sovereignty and preventing the federal government from evolving into a centralized despotism. Separation of powers, the enumeration of powers, and the explicit provision for state sovereignty were essential characteristics of the new constitutional republic.
LEGISLATORS
In determining the makeup of Congress, after much debate the delegates agreed to “The Great Compromise,” offered by Roger Sherman of Connecticut, in which the members of the House of Representatives would be selected on the basis of the population within the states, and the members of the Senate would be selected by the states based on equal representation.
Article 1, Section 2, Clause 1 of the Constitution provides: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Article 1, Section 3, Clause 1: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”
Although Montesquieu favored proportional representation, his observation respecting proportional and equal representation within a national legislature was known to the delegates and obviously influenced their design. Montesquieu wrote, “It is unlikely that the states that associate will be of the same size and have equal power. The republic of the Lycians was an association of twenty-three towns; the large ones had three votes in the common council; the medium-sized ones, two; the small ones, one. The republic of Holland is composed of seven provinces, large and small, each having one vote” (2, 9, 3).
JUDGES
Montesquieu was adamant that a republican government required a judiciary unencumbered by the political pressures and influences of the legislature and executive but faithful to the text of the laws the legislature composed when exercising its adjudicative duties. “The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires.… But though tribunals should not be fixed, judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted” (2, 2, 6).
The Constitution created the Supreme Court and granted Congress the power to create inferior courts. Article 3, Section 1, Clause 1 of the Constitution provides: “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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.…”
Filling the Supreme Court and the lower Article 3 courts would be a joint endeavor between the executive and the Senate (which was originally intended to represent the states), ensuring that no justice or judge would be beholden to one or the other political branches. The president would nominate judicial candidates and the Senate would consent, or reject them. Article 2, Section 2, Clause 2 provides: He [the president] shall … nominate, and by and with the Advice and Consent of the Senate, … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.…”
COMMERCE
Montesquieu’s view of the beneficial effects of private property and commerce in a republic was also shared by the delegates. As Montesquieu explained, “[T]he spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.…” (1, 5, 6) “Commerce cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores.…” (4, 20, 1) “In short, one’s belief that one’s prosperity is more certain in these states makes one undertake everything, and because one believes that what one has acquired is secure, one dares to expose it in order to acquire more; only the means for acquisition are at risk; now, men expect much of their fortune.…” (4, 20, 4)
Indeed, during the convention debates Madison noted that the predatory and retaliatory taxation visited on some states by their neighbors was an endless source of “dissatisfaction and discord” and resulted in “New Jersey, placed between Philadelphia & N. York, [being] likened to a cask tapped at both ends; and N. Carolina, between Virginia & S. Carolina to a patient bleeding at both arms.”29 The Framers adopted language intended to overcome these obstacles to commerce. Article I, Section 8, Clause 3 of the Constitution provides: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.…” This clause is often referred to as the Commerce Clause since it was intended to promote the trading of goods between and among states and eliminate state barriers to interstate commerce, extend prosperity and tranquility throughout the republic, and regulate commerce with foreign nations and Indian tribes.
Concomitant with promoting commerce, the Constitution protects private property from seizure by the government without a legitimate public purpose and fair compensation to the property owner. 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.”
Obviously, there is much more to the Constitution and the events surrounding it. But the purpose here is to highlight the most important areas of Montesquieu’s influence on the Framers. Although he was not the only authority relied on by the Framers, his reach was momentous. Montesquieu’s dread of despotism, commitment to political liberty, and keen intellect in analyzing both, together with his genius in applying philosophy to the mechanics of politics, were essential guideposts in establishing the Constitution and the American republic.
After fighting and winning a long, bloody, and costly revolution, it was certainly conceivable, or at least theoretically possible, that rather than join together to improve and then discard the Articles of Confederation for a new constitution, the Founders, many with different and conflicting notions of the particulars and nuances of governance and aligned with one or another faction, could have abandoned the process of establishing a federal government altogether. Moreover, history bursts with examples of triumphant democratic revolutions and movements hijacked by self-aggrandizing masterminds, who then commit their societies to tyrannical purposes; or the victorious dividing the spoils of a war won and taking for themselves power and wealth. But through it all, the Founders maintained their integrity and remained true to the revolution’s purposes. None of the states were compelled to join the union, but all did. And the debates and decisions in the Constitutional Convention and the state ratifying conventions were always about the best ways to protect and promote the civil society and the l
iberties and rights of the individual, as enshrined in the Declaration of Independence. Indeed, with Montesquieu’s The Spirit of the Laws as an outstanding reference, never before had a nation been so thoroughly engaged in such an extraordinary venture.
It is obvious that at every turn, the Constitution’s Framers repudiated by words and actions—as did Montesquieu and Locke—the utopian designs of Plato’s Republic, More’s Utopia, and Hobbes’s Leviathan, all of which had been known to them. Although Marx’s Communist Manifesto would come later, the debates and decisions of the Framers, and the Constitution itself, make abundantly clear that they would have been no more enticed by the dogma of the “workers’ paradise” than by any other form of tyranny disguised as utopia.