As the second Senate impeachment trial against the former US president wraps up, what would the 18th-century French thinker, the Baron de Montesquieu (1689-1755), have made of the current state of US democracy, in light of riots which echoed the British burning of Washington during the War of 1812 (depicted above)? Although the influence of John Locke’s thought on the US Founding Fathers may be better known, especially his formula of ‘life, liberty, and property’ modified into ‘life, liberty, and the pursuit of happiness’, Montesquieu’s De l’esprit des lois (The Spirit of the Laws, 1748)–the focus of EMSP 4002 in the past two weeks–was just as important an influence on the framers of the American constitution. Let us, then, un-Locke some Montesquieuian perspectives on the USA today.
Montesquieu’s direct influence on the American constitution is reflected in this short video in the series ‘Our American Republic’. Although Montesquieu died over two decades before the American Revolution, his remarks on the English constitution in many ways describes the future republic better than it does Britain’s constitutional monarchy. In Book 11, chapter 6 of The Spirit of the Laws, Montesquieu describes the English constitution as producing liberty through the separation of legislative, executive, and judicial powers–a view which builds upon Locke’s account of separated powers but replacing the ‘judicial’ for the ‘federative’ power in the English thinker’s treatment. In other words, those who execute the laws are distinct from those who make them, and there is a third body which interprets the law. Each power, then, checks the others and ensures the rule of law rather than the oppression of one body over another. This accurately describes the separation of Congress, the President, and the Judiciary in the US constitution, but not the fusion of executive and legislative powers in Westminster constitutions such as in Britain, Canada, and other Commonwealth countries. In other words, it may presage the USA, but is a Monte-skewed view of England.
On this basis, then, some American scholars see Montesquieu’s analysis as bolstering the claim that the USA is the freest country in the world. The current impeachment trial, not to mention the tenor of American political culture in the past decades, indicates that predominant conceptions of freedom in the USA and other countries fall short of Montesquieu’s views on liberty. He argues earlier in book 11 that in ‘a society where laws exist, liberty can consist only in being able to do what one ought to will, and in not being constrained to do what ought not to will….Liberty is the right to do everything the law permits’. This positive conception of liberty, in which one is free through the laws rather than outside them, is in stark contrast to the negative conception of liberty as the right to do what the laws do not forbid. The latter, libertarian conception informs the ideology of limited government and recent arguments that the ex-president’s inflammatory rhetoric up to and including the Capitol Hill riot was an exercise of free speech. Thus, such negative liberty is more Lockean than Montesquieuian, and in its bolstering of hate speech from white supremacists on the extreme right may be seen as a form of libert-aryanism.
Moreover, the political climate leading up to recent events lend themselves to Montesquieu’s analysis of political corruption. He argues that while democracies, aristocracies, and constitutional monarchies are all legitimate forms of government, they may all degenerate into despotism. When citizens in a democratic republic are no longer motivated by public virtue, aristocratic rulers are immoderate and oppressive, and a monarchy lacks an effective nobility and a repository of laws to check the power of the ruler, each form will become corrupt and begin to decline into despotism–as did France since the 17th century, Montesquieu thought. Although he locates most despotic regimes outside of Europe–given Montesquieu’s strident Eurocentrism–he warned the moderate regimes of Europe of the dangers of approaching despotism, a regime in which an absolute ruler governs without constitutional checks and makes decisions based on will and caprice rather than law and convention. Such was the tendency of the Trump administration, as well as the desire of the rioters on Jan. 6 to counter a ‘stolen’ election by hastening a military coup. One might say that the USA was in danger of becoming a Capitol ‘D’ Despotism.
Till next time,
Director, Early Modern MontesQAnon Studies Program