- - Tuesday, April 12, 2022

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.


In his book, “The Spirit of Laws,” the Baron de Montesquieu laid out a path forward for the new republic that would balance its democratic impulses — which feared institutional and distant power and revered dispersed and localized power — and its nationalist impulses, which feared the rule of the mob, the ascendancy of an unreflecting reliance on reason, and lack of efficiency and energy in the government.

James Madison and the other Framers wanted to prevent the national government from infringing on the states and prevent small groups from capturing or diminishing the federal government.

To address these challenges, Montesquieu suggested — 40 years before the Constitutional Convention — his “trias politica,” or separation of powers. Under this approach, the political authority of the federal government is divided into the legislative (Article I), executive (Article II) and judicial (Article III) branches of government.

Montesquieu believed that the surest way to ensure both freedom and the discipline of government that enables freedom and to effectively and efficiently defend liberty is to make the branches separate and independent from the others.

Such separation precludes one branch from becoming more powerful than the others. The separate, independent branches perform checks on the others to ensure, again, that one does not become tyrannical with respect to the others. Madison notes the following in Federalist 48: “After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.” 

The genius of Montesquieu is that he uses human frailties and impulses to check and balance each other. He purposefully references human nature in “The Spirit of the Laws” and claims humans are greedy, depraved and lazy. Madison reasserts these claims in his writings within the Federalist Papers and, as a result, concludes that people will inevitably retreat into factions where similar ideological belief is dominant.

In Federalist 10, Madison writes: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions and the same interests.”

Consequently, checks and balances must be created and asserted within the separated powers to prevent tyranny of the faction and the eventual tyranny of the majority.

Madison writes the following in Federalist 51: “There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First, in a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.”

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.”

“Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

“Second, it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”

In other words, Madison and the Framers created a sub-layer of separated powers within each constitutional article to prevent tyranny of the majority.

While everyone knows about checks and balances — veto power and legislative override; requiring supermajorities for certain legislative conclusions, nominations and confirmations, etc. — we often don’t focus on sub-layers of separated powers within each article. For example, the House has the power to impeach a federal officer, but the officer may not be removed from office without a conviction of the Senate — in which senators are sworn-in and serve as jurors.

Or consider the very structure of Congress. The House is based upon population and designed for its close relationship to the people. The House was supported by the larger states at the Constitutional Convention. Larger populations meant more seats in the House — which meant more votes — which meant the ability to push the larger-state agenda.

The check within the legislative branch was the creation of a separate chamber — the Senate — to check the power, whims or emotions of the majority. This was a victory for the smaller states to prevent the tyranny of the majority through an elected legislature.

The goal, here as elsewhere in the Constitution, was prevention of tyranny of the majority, even if it means a less efficient and slower process. It is a consistent theme across the frame of the Constitution.

• Aaron S. Van Allen is an adjunct professor of government at Liberty University.

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