Sunday, May 2, 2010

Origins of the Three Branches of Government in the US Constitution


A friend asked me to review the antecedents of the three branches of government in the US constitution.  This was not a new idea at the time of the founding.  In general, the best book to read to understand what the founders were thinking is the Federalist Papers by Alexander Hamilton, James Madison and John Jay.  It is evident in reviewing the Federalist Papers that the founders were students of the Enlightenment and in particular the ideas of Charles de Secondat, Baron de Montesquieu, who in 1748 finished one of the greatest works of political science, Spirit of Laws.  But Montesquieu was not the only important political scientist who informed the founders.  Aristotle, who wrote in the fourth century BC and whom the Englightenment famously rejected was still read.  It is important to understand that the education of that period and through the 19th century was religious in nature and emphasized the classics in the original Greek and Latin.  In political science and ethics students read Aristotle as part of the curriculum.  The founders were mostly knowledgable in Latin and Greek, and were certainly familiar with Aristotle's Politics.

Aristotle was one of the most important advocates of freedom in the history of ideas.  Unlike some of his Athenian contemporaries, he was not an abolitionist.  However, he responds thoroughly to the communist ideas of his professor, Plato.  He makes clear that it is fundamental to a state to have plurality and openness of exchange, and that excessive unity is deleterious.  He begins Book IV, Chapter 13 of his Politics as follows:
"Having thus gained an appropriate basis of discussion we will proceed to speak of the points which follow next in order...All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution.  When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is (1) one element which deliberates about public affairs; secondly (2) that concerned with the magistracies--the questions being, what they should be over what they should exercise authority, and what should be the mode of electing to them; and thirdy (3) that which has judicial power."
Aristotle there refers to the three branches of government that correspond to the US Constitution, the deliberative or legislative; the magistracy or executive; and the judicial.  Aristotle was not unkind to democracy, but he saw it as flawed unless it contained elements of aristocracy, by which he meant selection of the most virtuous to rule. This could be done using republican methods. 



Montesquieu relies on Aristotle's framework in writing his monumental Spirit of Laws. The scope and scholarship of Montesquieu's book is still awe inspiring today. In Book XI Section 6 Montesquieu discusses the Constitution of England. England at that time was the freest country, and he admired it greatly.  He writes:
"In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.  By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted.  By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.  By the third, he punishes criminals or determines the disputes that arise between individuals..."
In the Federalist Papers, which Hamilton and Madison published in several newspapers to drum up public support for the Consitution, Montesquieu is referred to numerous times. In general, the founding fathers were students of the Enlightenment and applied their understanding of Montesquieu, Locke, Hobbes, Smith and other Enlightenment thinkers to their conceptualization of the Constitution. 


The United States had been founded by religious sects fleeing persecution in Europe.  At least several of the original 13 colonies were founded by religious groups.  New York was not (it was founded by a commercial enterprise, the Dutch West India Company), nor was Virginia.  The founders differed considerably as to their religious orientations.  All were trained religiously, for education in those days was a religious enterprise.  However, not all were religious. George Washington was an observant church goer.  Benjamin Franklin was an atheist. Jefferson and Adams were Deists, which is not quite being a full Christian.  Jefferson re-wrote the Bible, taking out all of the miracles.  The Jefferson Bible is available to read.  Jefferson was an enlightenment rationlist. Deism is something like Unitarianism. On his grave Jefferson had three achievements listed:  (1) author of the Declaration of Indepdence; (2) author of the Virginia Statute of Religious freedom and (3) founder of the University of Virginia.  He did not list President or Governor of Virginia.  The Virginia Statute on Religious freedom concludes:
"Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right."

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