Thursday, July 14, 2011

Montesqueiu and the American Constitution

Montesqueiu’s greatest contribution to our government is his outline for the separation of political power into three branches: the executive, legislative and judicial bodies.

James Madison
James Madison, while defending this principle, cited a lengthy quotation in Federalist Paper Number 47 which demonstrated this idea originated with Montesquieu. We can probably regard Madison as a reliable source as he is considered the "Father of the Constitution" as well as the Bill of Rights. The division and distribution of power from one body to several is not a new concept; the Greeks and Romans attempted similar schemes. What Montesquieu does is to fully investigate the reasons for this divestment of political power into multiple (three) branches and why it is required for maintaining a strong republic and preserving liberty.

In The Spirit of Laws, Montesquieu states that government should consist of one body that makes laws (legislative), one that makes wars and peace, directs the military and foreign relations (executive) and one that punishes criminals (judicial). Montesquieu believed that many governments have become corrupt, weak or collapsed because too much power was invested in too few people, which is one reason for the distribution of power. In addition, concentrating power will naturally lead to decreased liberty for the masses.

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty, if the judiciary power be not separated from the legislative and executive."

It is noteworthy that John Locke, discussed previously, proposed to separate power between a legislative and an executive. However, he retained the judicial powers with the executive.

Montesquieu also proposed checks and balances between the different powers. This included dividing the legislative power into two bodies.

“The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative." In addition, Montesquieu believed that the judicial power should decide court cases, not the executive, but the executive should be allowed to overrule the courts: for example by granting a pardon.

The Spirit of Laws also made several other contributions to our government:

No cruel and unusual punishments

Montesquieu cites the Valerian and Porcian laws passed in ancient Rome which exempted Roman citizens from degrading and shameful forms of punishment (such as scourging with rods or whips and crucifixion).

In addition, he believed that if punishments are too strict criminals would become "inured to the cruelty of punishments, would no longer be restrained by those of a milder nature". In other words, we should make the punishment fit the crime and not exceed it.

State Rights

We need strong provinces to have a strong republic, so let states have some control in their governance.

Freedom of speech

"It is not the words that are punished, but an action in which words are employed".

Therefore is OK to say you want to overthrow our government, but don’t actually try it.

Equal rights for women

Montesquieu supports suffrage for woman which he says can flourish in a republic and contribute to its success. "In republics women are free by the laws and restrained by manners". For example women had more rights in ancient Greece and this likely explains the success of that ancient government. Montesquieu also states that women make better leaders as they have "more lenity and moderation, qualifications fitter for a good administration than roughness and severity".

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