Did The Founders Err?
Did the Founders error when they decided to institute a non-parliamentary form of government?
Being well read, Madison and Hamilton were quite familiar with Baron de Montesquieu’s seminal work, The Spirit of the Laws (De l‘esprit des lois.) Montesquieu argues that there are three types of political systems: republican, monarchies, and despotic governments. The differences between a monarch and a despot are in whether the ruler answers to the people through the law or not.
He also called on a government made up of different branches with a separation of power at its core. Montesquieu wrote his treatise in 1748. At the time, there were no true democratic republics in the world. In effect, all rulers were monarchs. The way to keep sovereigns from being despotic and seizing all power in their hands was to defuse or separate that power among differing governmental bodies such as parliament and a privy council.
While he was not anti-monarchial, Montesquieu saw the role of monarchs much as we do today…a constitutional head of state and governing with the consent of the governed within a democratic framework. It was the opposite of how the bourbon kings of France attempted to rule during Montesquieu’s life.
The Founders were also very familiar with the works of John Locke. Locke was born into a middle-class English Puritan household in 1632. He came of age during Cromwell’s Protectorate of the 1650s and attended Christ Church College at Oxford. He joined a society while at Oxford that became the English Royal Society in London after the Restoration with a charter from Charles II. Instead of using Aristotelian philosophy, the Society looked more to nature for answers.
Locke became a physician and while studying became friends and a mentee with both Newton and Boyle (“Boyle’s Law on Gasses”.) He lived in the home of Lord Ashley and was his personal doctor. Locke became a proponent of English trade and believed that colonies should promote that trade. Locke, through Ashley’s patronage, became secretary to the Board of Trade and Plantations and the secretary to the Lord Proprietors of the Carolinas. It was in that capacity that he wrote the first constitution for the Carolinas.
He is the father of “liberalism” in the classical sense. His ideas of separation of church and state were well known to Madison, Hamilton, and Jefferson who used his ideas when writing the Declaration. Locke was instrumental to Voltaire, Montesquieu, and Rousseau in developing their philosophies. In turn, those philosophies further influenced our Founders to choose a government that had a distinct executive that was not part of the legislative branch.
Our system of government worked fine for the 18th and 19th centuries. It is far from perfect in our own time. The U.S. Constitution was once admired and copied by other nations. Since the end of World War II this is no longer so. It does not address today’s problems as it did in previous centuries.
For much of the post war era, our government and nation functioned because of implied principles not found in the Constitution. The courts, Congress, and the executive could paper over their differences and give us a functioning national government. In an earlier time, we compensated for constitutional inadequacies by the amendment process. We no longer amend the constitution to address these challenges.
One of the chief arguments to having distinct branches of government was to have a chief executive that represented all Americans as that term was defined in 1789 (white, male, and men of property.) To this day, the president is not popularly elected but through a convoluted process that has brought us some of our most fundamental constitutional crises, including the January 6th breach of the Capitol.
No other major nation has an electoral college and the few that do, have presidents who are more ceremonial heads of state than chief executives. In other ways, the separation of power can only work if everyone cooperates and agrees to be bound by the written and, more importantly, unwritten rules. We have seen the erosion of congressional authority because of the executive’s refusal to acknowledge that authority granted under Article 1. If Congress must rely on the courts to compel the president to recognize their Article 1 powers, then it becomes impossible for that branch to function as the courts can take years to decide a case.
I again ask the question: did the Founders err when devising our system of government? A parliamentary system like the U.K. or Canada has the chief executive and majority party leader as members of the legislature. Would that bring more accountability to our government?
When some Republican legislators speak about electing Trump Speaker of the House even though he is not a member of Congress, has our nation become ungovernable in this free for all? Then do we still believe in separation of powers?
