Monday, January 12, 2009

Montesquieu on the Constitution

Montesquieu published the Spirit of Laws in 1748 and died in 1755, 32 years before the United States Constitution was adopted. The Founding Fathers relied on Montesquieu in their thinking about federalism and the Federalist Papers quote Montesquieu as an authority. Moving the clock forward 120 years, one of the questions that the Progressives raised concerned the Constitution's value. For example, Charles Beard argued, likely accurately, that the participants in the Constitutional Convention were in part motivated by concern for their own economic welfare. The model that Herbert Croly and Walter Weyl offered was one of a powerful, rationally guided state that could address emerging social problems. The fly in the Progressive ointment is its claim that rationality is possible. The history of rationality offers mixed results. The history of monetary policy, the most fundamental of political policies, has been one of error and misstep. Education policy has been a standing joke for ten decades. Simple retirement programs like Social Security and regulation of private pensions have been full of error. The Progressives misunderstood the principle of rationality. Intelligence is not primarily derived through deductive logic, but rather is learned inductively. Pragmatic experimentation is far more useful than mathematical derivation of hypotheses from clear and distinct axioms.

The Constitution works, so it would be foolhardy to reject it or to be overly aggressive in modifying it. Judicial activism is a crap shoot, and judges are as guilty of the American vice of speculative risk-taking as are Wall Street executives and real estate developers.

Montesquieu (Book V, Section XV):

"After what has been said, one would imagine that human nature should perpetually rise up against despotism. But, notwithstanding the love of liberty, so natural to mankind, notwithstanding their innate detestation of force and violence, most nations are subject to this very government. This is easily accounted for. To form a moderate government, it is necessary to combine several powers; to regulate, temper and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. This is a masterpiece of legislation, rarely produced by hazard, and seldom attained by prudence. On the contrary, a despotic government offers itself, as it were, at first sight; it is uniform throughout; and as passions only are requisite to establish it, this is what every capacity may reach."

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