RECAP: “Re-thinking the Separation of Powers,” Colloquium w/ McGill University Tomlinson Prof. Jacob Levy
In contextualizing the central theme of his April 16 talk within the history of political thought, McGill University Tomlinson Professor of Political Theory Jacob Levy summoned a figure who has become something of a familiar specter in the Kinder Institute’s 2020-21 Friday Colloquium Series: Montesquieu. Specifically, he held out Montesquieu’s Spirit of the Laws as an ur-text of sorts for understanding and, more importantly, for diagnosing how to resolve the difficulties that face the separation of powers as a contemporary constitutional doctrine and practice.
The talk’s tour through the philosophical backstory of a system of government in which the canonical powers (executive, legislative, judicial) are set against one another as equals began in the final years of the ancient Greek city-states, where deep concern over different regime types led Aristotle to hypothesize about a mixed constitutional order in which bringing together democracy (rule of the many), aristocracy (rule of the best), and oligarchy (rule of the wealthy) might draw out the advantages of each in a way that mitigated the forms of class conflict that were so pervasive and divisive in Greek life. A variation on this mixed construction, Prof. Levy explained, was then adopted by ancient Rome as a flattering self-description of the order underlying the republic’s success. With the many represented in the popular Assembly, the elite few represented in the Senate, and two consuls appointed for one-year terms to avoid monarchical oppression, the republic ultimately created different institutional spaces in which distinct class interests could be expressed but in which the classes were also forced to work together in service of a common good.
Independent of any sense of historical continuum, the monarchies of Western Europe likewise stumbled onto this institutional form during the Middle Ages as an efficacious system of government. Particularly when it came to the necessity of taxing by consent vs. by violent coercion, kings found that they required buy-in both from the feudal nobility and the residents of the cities, which were fast growing into commercial hubs and centers of wealth. As in Rome, establishing separate spaces in which the class interests of each group could be registered while cooperative government around shared civic interests was simultaneously being advanced proved a path forward, though Prof. Levy was quick to point out that a system of mixed constitutionalism like this one, where the different orders of society worked collectively, was not at all tantamount to a separation of powers doctrine.
This would start to change in late medieval England and France, where the rule of law was beginning to emerge as an apparatus for curbing excessive state authority and defending private citizens against arbitrary monarchical prerogative. The evolution of this innovation was slow and a bit haphazard, Prof. Levy noted, but its primary component—the rise of a judiciary which could limit new lawmaking to ensure consistency with legal tradition—brings us finally back to Montesquieu, who saw England’s post-Glorious Revolution constitution, into which such a judiciary was woven, as having made more significant progress toward a better, freer system of government than any other European republic’s. Perhaps more relevant here, Montesquieu specifically described this system in terms of a separation of powers in which the House of Commons (i.e., the people) had lawmaking authority; the monarch had an authority to act swiftly, decisively, and at times violently in executing the laws; and the few—the nobility and bishops who made up the House of Lords—occupied important pieces of judicial power. True, the House of Lords rarely acted as a court during this time, but highlighting this, Prof. Levy argued, would overlook how it was still the only venue in which members of the nobility could be tried and, even more critically, in which impeachment power was vested. For Montesquieu, people living under a system where legislation was separate from—and where it preceded—execution and judgment were free because they knew what law was; that it was not tailored to unduly punish them; and that compliance with it implied safety, especially given the existence of a separate, ordinary judiciary to protect habeas corpus rights.
What the American founders knew of the English constitution, they learned from Montesquieu, but while they deeply imbibed and sought to emulate his idea that freedom required a separation of powers, they were confronted with the need to adapt it to a society without distinct classes or estates. As is made clear throughout, say, The Federalist Papers was that the founders fervently believed that an almost jealous commitment to institutions could sufficiently replace class distinction as a way to keep branches of government at productive odds with one another. Congress’ pride in its own legislative authority implied, for example, that it would be on the lookout for and resistant to excess executive power. If judges were appointed for lifetime terms, they, too, would protect their particular power by closely monitoring other branches for potential abuses. As Prof. Levy emphasized, this vision was at the heart of his talk’s thesis precisely because it never actually panned out.
Why it didn’t pan out, he continued, can be traced back to how little foresight—or, alternately, how much willful ignorance—the U.S. constitutional architects had when it came to the development of political parties. Without parties, their vision might have held. The near-immediate (and inevitable) emergence of parties, however, profoundly transformed the relationship between the legislative and executive branches that the founding generation sought to bring to bear. If a president presided over a friendly partisan congress, there would exist no inclination for the latter to protect its own power, thereby creating a gateway for executive disregard for institutional constraints (congress, in this scenario, would lack the vanity which inclined the House of Lords to stand up to the monarch). On the other hand, if the government were divided between parties, any legislative attempt to hold the executive accountable for abuse would be seen by the people not as an institutional safeguard but instead as indistinguishable from normal partisan fighting. Further complicating things, Prof. Levy noted, is the fact that parties are good—the fact that they serve more or less as a pre-requisite for maintaining constitutional government through performing such functions as limiting the short-term ambition of officeholders and presenting comprehensive platforms that enable the electorate to make informed decisions.
Recent glimpses into just how far ruthless, demagogic leaders can go in a constitutional democracy has thus placed the truth of how much we need parties at stark odds with the truth of how much we need, as well as how much we lack, a separation of powers. We are left, then, with the question of what can be done about this, and in closing, Prof. Levy suggested that the answer might involve going beyond Montesquieu’s three-part distinction and considering whether there might be more powers to separate. And given the massively disproportionate volume of governing that happens within the executive branch, this might be the place to start. We might, that is, be able to separate the executive branch in such a way that more closely approximates Montesquieu’s animating principle that rules be made in one place and implemented and enforced in another and, in this, restore the founding-era vision of government that is currently breaking down in front of our eyes.