The Essential Elements of and Conditions for a "Democratic
Republic": The View Prevalent at the Founding and in Early
American History
Stephen M. Krason
The author wishes to acknowledge and thank the Wilbur and Earhart
Foundations for grants during the summers of 1985 and 1986
respectively, which aided the researching and writing of this
article.
Martin Diamond, Winston Mills Fisk, and Herbert Garfinkle entitled
their American government textbook of some years ago <The
Democratic Republic>, stating that this was the best designation
to give to the American political order because it implies both of
the major political principles it was intended by our Founding
Fathers to embody. It is "democratic" _ in the representative,
not pure, sense _ because the majority rules; it is "republican"
because it is supposed to demonstrate such characteristics as
restraint, sobriety, competence, and liberty, "the very qualities
democratic government needs to be its best self."1 This essay
adopts their term "democratic republic" and the understanding they
have of it. It turns to important sources from the era of our
Founding and in early American history generally in order to
determine what our Founders, the political tradition they emerged
from, and the political society of early America regarded as the
elements and characteristics the political order had to embody and
the social conditions which had to prevail in order to maintain a
democratic republic. The following sources will be examined to
determine this: the political philosophers John Locke and Baron
de Montesquieu, selected early state constitutions and bills of
rights, the writings of the Founding Fathers, and the situation
prevailing at their time, the debates of the First Congress (which
framed the Bill of Rights), and Alexis de Tocqueville's <Democracy
in America.>
I. The Philosophers of Liberal Democracy:
Locke and Montesquieu
It has generally been held that Locke and Montesquieu, the key
early modern philosophic protagonists of liberal democracy, had a
decided influence on the American Founding.2 It is thus
appropriate to begin by considering what they thought to be the
essential elements and conditions for a democratic republic or
similar regime. It should be noted that Locke, unlike
Montesquieu, does not write specifically about a democratic
republic. His <Two Treatises on Government> describe the elements
of a <limited> government with a representative aspect, not of a
republic <per se.>3
In Locke's <Second Treatise>, he views the state of nature as
having been "free from any Superior Power on Earth."4 By nature a
man has certain inalienable rights; he cannot "<enslave himself>
to anyone, nor put himself under the Absolute, Arbitrary Power of
another."5 The state or political order comes into existence only
when "Men have so <consented to make one Community> or Government
. . . and make <one Body Politick>, wherein the <Majority> have a
Right to act and conclude the rest."6 Those who join the social
contract establishing this new political community surrender the
political powers they previously held to the majority, and this is
the origin of the state's power. Even when a particular
government is dissolved, power still resides in the political
community which can then turn it over to a new type of government.
Government exercises three types of power: legislative,
executive, and federative (the last involving the power over war-
making and foreign affairs). Regardless of the form of
government, Locke seems to believe that the principle of
separation of powers must be adhered to. He believes that, if
otherwise, absolute arbitrary power would prevail, which men
cannot submit to because it would violate the inalienability of
their rights.7
Besides separation of powers and the absence of absolute,
arbitrary power, Locke points to other elements that limited
government (i.e., a "well-framed Government") requires. One is
that the supreme governmental power must reside in the
legislature. Locke says the following:
In all Cases, whilst the Government subsists,
the <Legislative is the Supream Power> . . . all other Powers in
any Members or parts of the Society, derived from and subordinate
to it . . .
The Executive Power . . . is visibly subordinate and accountable
to it, and may be at pleasure changed and displaced . . .8
This "<Supream Power>" is the power of making laws and no
enactment or edict can "have the force and obligation of a <Law>,
which has not its <Sanction> from that <Legislative>, which the
publick has chosen and appointed."9 Legislative power is by no
means unlimited, however. First of all, it must be recognized
that the legislative power comes from the people _ "Men . . . put
the Legislative Power into such hands as they think fit"10 _ and
it was not created as an absolute power. Locke insists that there
are "Bounds" to legislative power set both by the original grant
of it, in the social contract, by men and by "the Law of God and
Nature . . . in all Forms of Government."11 Four specific limits
which he sets out are: that men be "govern[ed] by <promulgated
establish'd Laws,> not to be varied in particular Cases . . .
[and] to have one Rule for Rich and Poor"; that the "<Laws> . . .
ought to be designed for no other end ultimately but <the good of
the People>"12; since it is fundamental that "[t]he <Supream Power
cannot take> from any man any part of his Property without his own
consent,"13 it follows that it also "must <not raise taxes> on the
Property of the People, <without the Consent of the People>, given
by themselves, or their Deputies"; and that "[t]he <Legislative>
neither must <nor can transfer the Power of making Laws> to any
Body else, or place it anywhere but where the People have."14
Since men's inalienable rights preclude their establishing an
arbitrary power over themselves, the legislature cannot act
arbitrarily when making law. This, in turn, suggests another
principle of Locke's which, while not apparently mandated by him
is certainly preferable for a commonwealth: that those who make
the laws must be subject to them.15
A further principle is one which seems vital to any representative
government where the legislative is supreme: majority rule. This
is logical in light of the fact that, at the time of the social
contract, power was given to the majority. For a governmental
action to be valid _ Locke speaks specifically about the levying
of taxes _ it is necessary to have "the Consent of the Majority,
giving it either by themselves, or their Representatives chosen by
them."16 Thus, even if Locke is not seeking to set forth
principles for a representative <democracy> or a democratic
republic, <per se,> by emphasizing such a majority-rule principle
he clearly builds a fundamental democratic component into his
notion of the well-ordered commonwealth.
Tied in with the limitation on the legislature of making laws only
for the good of the people is another, more fundamental, Lockean
principle that the "well-framed government" must exhibit: the end
of the government must be the good of the community. Whatever
"alterations are made in it, tending to that end, cannot be an
<incroachment> upon any body."17
Locke sets forth one other noteworthy principle: the right of
revolution. He says that when someone _ he was writing, of
course, particularly with reference to the English kings before
the Glorious Revolution _ tries to make laws "whom the People have
not appointed so to do," the laws have no force and the people
have no obligation to obey. They may resist the usurpers of
legislative authority "and may constitute to themselves a <new
Legislative>."18 This "<new Legislative>" can be of the nature of
a "change of Persons, or Form, or both."19
In summary, then, we can say that the following are the elements
and principles Locke saw as necessary for limited government and,
logically, for a democratic republic: the absence of arbitrary,
absolute power; separation of powers; political power must be
understood as being derived from the people; laws must be firmly
in place, adequately promulgated, and applicable to all; laws must
be designed for the good of the people and the end of government,
generally, must be understood as being the good of the community;
property cannot be taken from nor taxes levied upon men without
their, or their representatives', consent; the legislature cannot
transfer the power of making laws; those who make the laws must be
subject to them; majority rule must prevail; and the right of
revolution exists whenever someone who does not have the authority
to do so tries to seize the legislative power in the community.
In his key work, <The Spirit of the Laws>, Montesquieu devotes
much attention to the elements necessary to maintain a democratic
republic.20 A number of the principles he puts forth are the same
or similar to Locke's: the people should be supreme and have the
sole power to enact laws, they must be able to choose their
magistrates, and separation of powers is needed.21
He also sets forth principles involving suffrage, which is the way
the people exercise their sovereignty.22 The citizens must be
able to fix those of their number who are to form the public
assemblies."23 (He apparently is thinking here of something like
the direct democracy which existed in ancient Greece, although the
principle expressed would seem applicable to a larger democratic
republic in the sense of the people being permitted to decide how
many citizens should have the vote.)
He also advocates suffrage by lot in choosing magistrates, a
practice which he says is "natural to democracy." That is, those
who will be among the candidates for election as magistrates
should be chosen by lot from among the eligible electorate, or
from certain classes in the electorate. This, when modified to
insure that the people chosen are worthy, will motivate the desire
of citizens to serve their country. He contends also that to have
suffrages in public instead of secret (i.e., people stating who
they are voting for) is "a fundamental law of democracy." The
early American practice of viva voce elections followed this
principle. The reason for this is that "[t]he lower class ought
to be directed by those of a higher rank and [be] restrained
within bounds by eminent personages."24
Montesquieu also pointed to a number of moral and social
conditions that had to prevail in a democratic republic. The
first of these is, simply, the need for virtue. This is much more
crucial in a republic than in either a monarchical or despotic
government, where the "force of laws" and the "prince's arm,"
respectively, "are sufficient to direct and maintain the whole."25
Montesquieu defines this virtue as "the love of the laws and of
our country," and says that it entails "a constant preference of
public to private interest," and adopting of "good maxims" to
direct people's lives, and a love of equality and frugality.26
Connected with the latter is the need to maintain a fixed and
certain credit.27
In addition to promoting a love of equality, a republic must also
divide its land equally among its citizens, and also insure that
the divisions be small. He also calls for an "equality of
fortunes," saying that this supports frugality."28 He does not
insist upon a rigid, strict equality of either land or fortunes,
however, merely a relative one. He says that "[a]n equal division
of lands cannot be established in all democracies . . . [and in]
some circumstances . . . would be impracticable, dangerous, and
even subversive of the constitution"29 and that "[d]emocracy has .
. . two excesses to avoid _ the spirit of inequality . . . and the
spirit of extreme equality, which leads to despotic power."30 In
"a well-regulated democracy," equality extends only to men as
citizens (i.e., in the rights and duties of citizenship), not to
their other associations and relationships (i.e., it does not
extend to men "as magistrates, as senators, as judges, as fathers,
as husbands, or as masters").31
As equality must be limited, so must liberty. It must be
understood that it involves not only the freedom to <do> certain
things, but also the freedom to live safely in the midst of
others.32 Thus, he defines liberty as "a right of doing whatever
the laws permit" and seems to confine it to the realm of the
political.33
Three other social conditions must prevail for a democratic
republic, two of which involve the virtue mentioned above.
Education is needed to instill virtue (this "ought to be the
principal business of education")34 with the aim of producing wise
men to govern. He also insists, contrary to the Founding Fathers,
that the overall territory of a republic must be small.35
II. Early State Constitutions and Bills of Rights
Another source to turn to for our inquiry are the provisions of
state constitutions and bills of rights. These are especially
valuable because, since they represent the establishment of the
fundamental law of a state, they are illustrative of a basic
political consensus. They are limited, however, as a source of
information because, while containing statements of basic
principles of political philosophy and institutional provisions
which suggest such principles, they also contain many technical
provisions about the carrying out of various governmental
activities which are not especially enlightening for our purpose.
No attempt will be made here to examine in detail state
constitutions of the period, although a brief, general survey of
state bills of rights follows in order to point out the rights
most widely accepted at the time of our Founding. Rather, the
constitutions of two large, important states at the time of our
Founding are considered: Virginia and Massachusetts.
The most noteworthy political principles contributed by Virginia
to the American Founding are seen in the Virginia Bill of Rights
of 1776, which we shall consider shortly. Three significant ideas
appear in Virginia's Constitution of 1776, however: separation of
powers, rotation of officeholders (referring specifically to the
state legislature) and a generally limited duration of office, and
the need to maintain fixed and adequate salaries of state
judges.36
The Massachusetts Constitution of 1780, which succeeded the
charters of the Massachusetts Bay Colony, is a much longer
document and embodies many more basic political principles than
the Virginia Constitution of 1776. It states or implies the
following principles: separation of powers; that there must be
"an equitable mode of making laws, as well as . . . an impartial
interpretation and a faithful execution of them"37; free
elections; frequent elections for both legislative and
international office (it specifically calls for annual elections);
the need for a landed electorate; election of the legislative
branch on the basis of "the principle of equality," which means
appointment of legislative seats on the basis of the number of
electors paying poll tax; election by written _ and, it follows by
implication _ secret ballot; that laws should not be suspended;
the requirement of money bills originating in the house of
representatives; the protection of members of the legislature from
arrest or process while attending or traveling to or from the
legislative session; and the need for holders of executive offices
(governor and lieutenant governor) to meet religious
qualifications (the governor is specifically required to be a
Christian).38
The Massachusetts Constitution of 1780 makes some general
statements of political philosophy, both in its Preamble and in
its section which lists the rights of the Commonwealth's
inhabitants (the "bill of rights" was a part of the body of the
document; there was no separate bill of rights as in Virginia's
case). No statements of political philosophy appear in the
Virginia Constitution; they are in the Virginia Bill of Rights.
We turn to these passages now.
The Virginia Bill of Rights, like the Massachusetts Constitution,
makes a statement about the natural liberty and inherent rights of
men. The former says that "all men are by nature equally free and
independent, and have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any compact,
deprive or divest their posterity . . ."39 The latter states that
"[a]ll men are born free and equal, and have certain natural,
essential, and unalienable rights . . ."40 Both list these
"inherent" or "unalienable" rights: enjoying life and liberty,
acquiring and protecting property, and seeking and obtaining
happiness and safety. The Massachusetts Constitution, perhaps
reflecting the origins of the colony in the Mayflower Compact,
speaks of the origins of the "body-politic" in a "social compact."
The Virginia Bill of Rights makes only an indirect reference to
such a compact in the above passage. The latter affirms that
political power is derived from the people and that their
magistrates are answerable to them. Both hold that the purpose of
government is to help individuals secure the natural rights above
and to promote the common good, and if it fails to do this the
people may alter or abolish it. The Massachusetts Constitution
insists also that all men have the obligation to worship God and
it asks for His direction of the government it is creating. It
also acknowledges that "the happiness of a people and the good
order and preservation of civil government essentially depend upon
piety, religion, and morality."41
The Virginia Bill of Rights also contains a statement of
additional specific governmental principles and practices besides
those in the Constitution (apart from the specific guarantees of
individual rights). These are that no emoluments ought to be
given men by the community except in return for services, that no
offices by hereditary, that elections be frequent (this is really
just an elaboration about the points concerning duration of office
in the body of the Constitution), that elections be free, that
electors have "permanent common interest with, and attachment to,
the community," that the people cannot be bound by any law or tax
levy not consented to by themselves or their representatives, and
that laws cannot be suspended or executed without the people's
consent.42
The political thought of early America, built in part on a Lockean
base, believed that one of the most, if not <the> most,
fundamental purpose of government is to secure man's rights.
Which rights appeared most frequently in state constitutions and
bills of rights, and thereby were probably viewed as most
essential to a democratic republic? All of the early state bills
of rights guaranteed the right of a jury trial, freedom of the
press, and that the accused be informed of the charge against him.
The protection of life, liberty, and property _ already alluded to
as having been mentioned in the Virginia and Massachusetts
documents _ was the next most frequent guarantee. Related to this
was the specific guarantee of <habeas corpus>, which Massachusetts
and Georgia guaranteed. Six states required that persons accused
of crimes be permitted to have witnesses in their behalf. General
warrants were forbidden by five states, the same number which
granted protection from self-incrimination. Five states also
forbade cruel and unusual punishments and prohibited the exaction
of excessive bail. Three other states besides Virginia and
Massachusetts provided that laws not be suspended. Four states
prohibited <ex post facto> laws and (in the words of the Magna
Carta) provided that justice not be sold, denied or delayed.43
Other rights found their way into a smaller number of state
constitutions and bills of rights. These were the following:
guarantees against double jeopardy and being held for an infamous
crime without indictment or presentment of a grand jury; the
disallowance of bills of attainder; the guarantee that private
property not be taken for public use without compensation; the
right to emigrate to another state; the impartiality or
independence of judges; the barring of the quartering of soldiers
in private homes in time of peace; the forbidding of monopolies;
the guarantee that citizens will enjoy common law rights; the
requirement that penalties be proportionate to the offense; the
guarantee that the military was to be strictly subordinated to the
civil power; the requirement _ stated above as a general
governmental principle found in the Massachusetts Constitution of
1780 _ that taxes be levied only with legislative consent; the
right of counsel to accused persons; protection against
unreasonable searches and seizures; the right to bear arms,
freedom of religion, the right to assemble and petition.44
We can reasonably conclude that the rights that appear most
frequently in the various early state constitutions and bills of
rights would be judged to have been viewed as the most essential
to a democratic republic. Nevertheless, all the rights mentioned
above except the right to emigrate, the forbidding of monopolies,
the guarantee of common law rights, the proportionality of
penalties, and the subordination of the military to the civil
power were adopted, in some form, by either the federal
Constitution or Bill of Rights. Arguably, even these latter were
implicitly adopted. The first two are perhaps implied in the
privileges and immunities clause of the Constitution, the third in
the Ninth Amendment, the fourth in the Eighth Amendment, and the
fifth in the Third Amendment and the entire idea behind the U.S.
Constitution. It even <added> such provisions as the inclusive
due process clause found in the Fifth Amendment and the Seventh
Amendment guaranteed that facts found by a jury could not be
reexamined except according to the practice of the common law.
Even though the federal Constitution and Bill of Rights emerged as
an almost all-inclusive statement of the political rights of
Americans, we can judge from the discussion above that in the
years leading up to the adoption of the federal Bill of Rights by
the First Congress _ which really must be viewed as an extension
of the Founders' work on the Constitution since many were also in
the first Congress _ that some of the rights were viewed as more
essential or basic than others. This is reinforced by the debate
in the First Congress. During that debate, Madison singled out
for mention the rights of conscience (i.e., freedom of religion),
freedom of speech, press freedom, and trial by jury. He suggested
these were the preeminent rights. Other members of the first
House of Representatives during the debate singled out certain
other rights in such a manner as to lead to the conclusion that
they believed them to be the most basic and necessary. These were
<habeas corpus,> freedom of religion, freedom of speech and
assembly, and (in the words of one representative) the "rights
granted to the [British] subject." The latter would seem to refer
primarily to trial by jury of one's peers, <habeas corpus>, and
various due process guarantees.45
In spite of this clear basis for asserting that the Founding
Fathers and the American political society of their time and the
years before it viewed certain rights as more important, the
enactment of the Bill of Rights, as it stands, can be understood
as an acceptance of almost all of the above rights as "necessary"
and basic for a democratic republic, or at least that they should
be viewed as such from that point forward.
III. The Views of the Founding Fathers and the Political Society
of their Time
We shall now consider the Founding Fathers' views and the thinking
generally prevalent in their time _ as put forth directly in
important writings or as seen implicitly in political practices _
about the principles and elements that had to characterize a
democratic republic and the conditions necessary to maintain it.
We shall first note the ideas most widely prevalent in their
political society about this, then the ideas put forth by the most
eminent of the Founders and others who were particularly active or
influential at the 1787 Constitutional Convention.46
Two historians of the politics of colonial America, Bernard Bailyn
and George Dargo, mention a number of commonly held principles of
this sort before the Revolution. Bailyn says that it was "almost
an axiom of political thought in eighteenth century America" that
the colonial legislatures were replicas, albeit imperfect, of
England's "mixed and balanced constitution." In fact, however,
the colonial notion of a mixed constitution deviated from the
Mother Country's in one fundamental way, the fact that there was
no traditional aristocracy, the "middle order" in England, which
kept the "extremes of power and liberty from tearing each other
apart," and in many lesser ones, such as refusing a permanent
salary to colonial executives.47
Later, after independence, the early state constitutions
introduced ideas and structures which suggested the notion of
separation of powers. Bailyn, however, contends that they really
derive from this English idea of the mixed constitution, not from
the idea of balancing the functions of branches of government, and
from a belief that government faced dangers from "influence" and
"corruption."48 In fact, Dargo tells us that, instead of
emphasizing separation of powers, "[t]he colonial experience had
pointed toward a system of <legislative supremacy.">49 This is
not surprising, in light of the long colonial struggles against
the arbitrary power of colonial governors appointed by the Crown.
Ultimately, of course, legislative supremacy was rejected and what
came to be accepted emerged as the cornerstone principle of
American government: "separation of powers, mixed with an
elaborate system of checks and balances among roughly equal
branches . . ."50 By the mid-eighteenth century, "separation of
powers" had assumed its modern meaning that the functions of
government were to be kept apart by separating the agencies, or
departments, that performed these functions and by barring the
personnel of one from serving simultaneously in another. In
practice, however, legislative supremacy continued until after the
ratification of the federal Constitution.51
The other principles that Bailyn and Dargo point to as
characterizing early American political thought and practice are
freedom of speech,52 an independent judiciary,53 a broad
franchise,54 representation corresponding with population
levels,55 equitable apportionment,56 and the beginnings of the
Madisonian view of factions and political parties.57
Some brief elaboration on the latter four points is in order. On
the subject of the franchise, Bailyn states that as a
generalization in the colonies as a whole, "it seems safe to say
that fifty to seventy-five per cent of the adult male white
population was entitled to vote _ far more than could do so in
England . . ."58 He says that representation kept up with
expanding populations and that apportionment, by eighteenth
century standards, was "remarkably equitable, well adjusted to the
growth and spread of population . . ."59
Bailyn states the following about the view of parties and factions
in America before the second quarter of the eighteenth century:
Parties and factions _ their destructiveness, the history of the
evils they brought upon mankind, their significance as symptoms of
disease in the body politic _ are endlessly condemned and
endlessly abjured.60
In the 1730s, however, the view began to change. One New York
writer states that "some opposition, though it proceed not
entirely from a public spirit, is not only necessary in free
governments but of great service to the public. Parties are a
check upon one another, and by keeping the ambition of one another
within bounds, serve to maintain the public liberty." A
Pennsylvanian writes that "there can be no liberty without
faction." Sporadically, this new perspective surfaced in American
political writings during the middle fifty years of the eighteenth
century until it was fully elaborated by Madison in Federalist
10.61
What Madison says in Federalist 10 becomes, of course, standard
American thought at the time of the drafting of the Constitution.
He says that since the "mischiefs of faction" cannot be cured by
removing its causes _ this would require actually destroying
liberty or performing the task rendered impossible by human nature
of giving everyone the same opinions, passions, and interests _ it
is necessary to try to control its effects. This is done in the
following ways: if the faction is less than a majority, the
"republican principle" enables the majority to defeat it simply by
a vote; if the faction includes a majority, popular government
must render its members "unable to concert and carry into effect
schemes of oppression." It does the latter by means of the
"extensive republic," which has the result both of providing a
larger pool of capable, virtuous citizens from which to choose
representatives, of making cabals less likely because of the vast
territory, and of increasing and diversifying the number of
parties and interests making it less likely that a power-clutching
majority will develop.62
Separation of powers has already been mentioned as a principal
tenet of early American political thought. The Founding Fathers,
of course, also installed it into the Constitution. The
Constitution does not explicitly endorse the principle, but it is
clearly built into the structure and proposed functioning of the
federal government by the enumerated duties and prerogatives of
each of the branches. The importance of separation of powers is
emphasized in the writings of several of the Founders; in fact, it
can fairly be said to be for them the primary structural or
operational principle of government. Hamilton, for example,
defines "despotism" as a government in which all power is
concentrated in a single body.63 John Dickinson writes that
government must never be lodged in a single body.64 Edmund
Randolph, a delegate at the Convention who first opposed the
Constitution then later defended it, also emphasizes the
importance of separation of powers in his writing,65 as does
Madison in Federalist 476 who says about it that "No political
truth is certainly of greater intrinsic value."66 Jefferson, of
course, was not at the Convention, but his influence on the
shaping of American political thought give him not only a place,
but a prominent one, among our Founding Fathers. The centrality
of separation of powers in his thinking is clearly seen in his
proposed constitutions for Virginia in 1776 and 1783.67
The other essential element of a democratic republic listed most
frequently by the Founders in their writings is the guarantee of
certain rights. Jefferson stresses particularly freedom of press
and religion, but mentions also other rights and insists on a bill
of rights in his correspondence with Madison about the proposed
Constitution.68 Madison speaks of freedom of speech and press and
property rights.69 James Wilson emphasized liberty of the
press.70 The Federalist makes reference specifically to trial by
jury, freedom of the press, and the constitutional provision
against bills of attainder. The fact, as we have already seen,
that all the original thirteen states had bills of rights or
otherwise built guarantees into their constitutions indicates the
widespread belief at the Founding that protecting political rights
was seen as a crucial role of republican government. The only
real dispute regarding government and citizen rights at the time
of the Founding, of course, concerned a federal bill of rights.
There was probably little doubt that a primary purpose of the
federal as well as state governments _ as affirmed by the Preamble
of the Constitution which speaks of "secur[ing] the blessing of
liberty" and by the Declaration of Independence, which must also
be viewed as one of our Founding documents _ was the defense of
individual rights. The main point in the controversy between the
Federalists and Anti-Federalists was not whether the rights
existed or should be protected, but simply whether they needed to
be enunciated in a federal bill of rights as they already were in
state ones.
There are many other principles that the more prominent of our
Founding Fathers enunciated in their writings as being important
in a democratic republic. We might place these principles into
four categories: institutional features of the government,
aspects of democratic practice not specifically relating to
governmental institutions, the conducting of government, and moral
and social conditions necessary to sustain a democratic republic.
A number of the principles in the institutional category are
related to the notion of separation of powers. For example, John
Adams writes in his Defence of the importance of "mixed
government," by which he meant both the Lockean idea of the
functional division among different branches and the older,
Aristotelian notion of different social and economic classes being
represented in and balanced off in government. He contended that
birth, fortune, and property should all be considered in the
governments of the various American states _ indeed, property
should be represented in the legislatures _ but that "merit should
be preferred." A mixed government, where political power is
divided among different branches, is more likely to acknowledge
merit than one where there is only one repository of power; there,
"it has three resources, one in each branch of the legislature,
and a fourth in the courts of justice." Connected with Adams'
conception of mixed government is another principle which has
significance both for this Aristotelian notion and the modern idea
of separation of powers: that the "people's house" of the
legislature should have equal power as the senate and have a
genuine check on it. This, of course, was embodied in the U.S.
Constitution with the House and Senate being co-equal branches.
While a people's house is needed in a mixed government to protect
the poor, an "executive power, vested with a negative" [a veto] is
needed to protect the propertied.71
Madison and Hamilton echo some of these same points in their
arguments in support of the federal Constitution of 1787. They
say that a senate _ an institution identified with stability
because it is not so subject to popular pressures _ is needed to
prevent, in Madison's words, the "infirmities of popular
government."72 Hamilton emphasizes that both a Senate and a
popular assembly are essential: "balance and mutual control [are]
indispensable to a wise administration."73 The importance of "a
broad democratic branch" cannot be overstated, according to
Hamilton, because "[i]n free republics . . . the will of the
people makes the essential principle of government." There must
be, however, "mutual checks" among the branches, and, in general,
legislative power must be limited.74
Another institutional principle relating to the division of powers
which is emphasized by such Founders as Adams, Jefferson, and, in
Federalist 78, Hamilton is the need for an independent judiciary.
The Founders, of course, did not elaborate much on the structure
or powers of the judiciary except that, if we are to judge from
Federalist 78, they believed it, by nature, had less power than
either the legislative or the executive because it "has no
influence over either the sword or the purse; no direction either
of the strength or the wealth of the society; and can take no
active resolution whatever."75
Hamilton, representing the view of the majority at the
Constitutional Convention, speaks of two other essential
institutional principles for a democratic republic, or at least
the American democratic republic: a maintenance of the strength
of state governments and a preservation of a balance of power
between them and the federal government (in other words, the
principle of federalism), and a strong union ("a firm union is as
necessary to perpetuate our liberties as it is to make us
respectable").76
I am placing under the category of "democratic practice" those
political principles and practices which do not pertain to the
institutional arrangements of government but to the means of
insuring that there is popular participation in the government and
that it is responsible to the popular will. A number of these
principles and practices pertain to voting. On this subject,
there were some differences among the most eminent Framers, but we
still can perceive a consensus about basic aspects of this
question. Adams and Jefferson both assert the need to have
certain qualifications for voting, property among them. Adams'
scheme of mixed government called, of course, for propertied
interests along with persons of high birth and considerable
fortune to be represented in the government, specifically in the
senate. He does not mention requirements for voting for the
popular assembly in his writings; if he favored any they would
presumably be considerably broad. Jefferson speaks of
qualifications, but he is not insistent on one for property. In
his 1783 draft of a constitution for Virginia, for example, he
stipulates that all free male citizens who have reached the age of
majority, are sane, and have either resided in their county for at
least one year, possessed real property in it of a certain value,
or have been enrolled in the militia shall be permitted to vote
for the legislature.77 Jefferson thus believed that to vote a man
had to give evidence of some ongoing attachment to the community,
although this did not have to be established by real property
ownership. Madison, on the other hand, is opposed to a property
qualification for voting, even while acknowledging that government
must be concerned about protecting property rights. He says that
"[c]onfining the right of suffrage to freeholders, and to such as
hold an equivalent property, convertible . . . into freeholds . .
. violates the vital principle of free Government that those who
are to be bound by the laws ought to have a voice in making
them."78 He also opposes Adams' idea of one branch for property
holders and the other for those without property, saying that
instead property might be protected by enlarging election
districts for one branch and extending the term of office for that
branch (the solution which, by and large, was adopted at the
Constitutional Convention). He also suggests that it would be in
keeping with the nature of our political order for us to have
"equal and universal suffrage," if experience or public opinion
ultimately should require it.79
Probably Madison stands in a minority on the right of suffrage,
both in light of the thinking of his fellow Framers and the
general practice of his time. Property, or at least some
attachment to the community, was seen as a necessary requirement.
This is a clear-cut example of the Founders putting a limit on
popular rule and recognizing, in the Constitution, the need for a
balancing of interests. The Convention, in a sense, accepted
Madison's view as a principle of the national government by not
setting any requirements but leaving the regulation of the
franchise to the states. Madison's view represents, however, a
recognition by the Framers of something Tocqueville later
discussed: the likelihood of pressures for the increasing
democratization of the American political order.
Another aspect of democratic practice, often linked in the
Framers' writings with the right of suffrage, is duration in
office. There seems to have been a view prevalent among the
Framers and in the American political society of their time that
terms of office should be short _ except for the branch
representing property, the senate _ and elections should be
frequent.80 Except, again, for the senate, offices should be
filled by popular election, which Hamilton says is "the most
unbounded liberty allowed."81
The latter point about popular election is an expression of a much
more basic principle, which has been indirectly alluded to above,
which permeated the thinking of the Founders and of the political
society of America in their time: popular sovereignty. We can
see this principle stated directly in a number of their writings
and speeches. There is no doubt, as Diamond, Fisk, and Garfinkle
state, the political philosophy behind the American Constitution
is a democratic one,82 contrary to the arguments of some twentieth
century scholars and writers.83 Thus, Jefferson writes that the
"mother principle" of democratic republics must be that "they
embody the will of their people and execute it" and says of the
notion of popular control of our government through elected
representatives that we must "bring to the test of this canon
every branch of our constitution."84 Hamilton insists there be
free and fixed representation based on pure and equal
principles.85 Madison contends that "the vital principle of
republican government is the <lex majoris partis>, the will of the
majority."86 John Adams insisted that "the people's fair, full,
and honest consent, to every law, by the representatives, must be
made an essential part of their constitution."87 George
Washington said, "The basis of our political systems is the right
of the people to make and to alter their constitutions of
government."88 Edmund Randolph maintains that a free government
is one in which "laws [are] made with the assent of the people."89
The above dimension of the idea of popular sovereignty concerns
the actions and policy of government proceeding along democratic
lines. Another dimension was seen clearly in the emphasis placed
on individual rights, which is clear from what has already been
discussed. The general principle governing the latter was
enunciated by Jefferson: "The true foundation of republican
government is the equal right of every citizen, in his person and
property, and in their management."90 In a similar vein,
Jefferson says that "though the will of the majority is in all
cases to prevail, it must be reasonable" and "the minority possess
their equal rights, which equal laws must protect . . ."91
Two other aspects of democratic practice connected with the
principle of popular sovereignty which are stressed in the
writings of a number of Framers are that taxation cannot be levied
without the consent of the people's representatives _ and, more
generally, that the state's power to tax is not unlimited _ and
that there be civilian control of the military regulated by the
laws.92
Two other principles that could be placed, although perhaps not
precisely, into the category of "democratic practice" are put
forth by John Adams. The first is that the laws are preeminent in
a democratic republic. He says: "the laws . . . are the only
possible rule, measure, and security of justice"93 and "alone can
be trusted with unlimited confidence."94 The second is that the
laws must embody the natural and divine laws.95
A number of points, which Washington and Jefferson enunciate, fall
into the category of the conducting of government. These
represent their views about practices which had to be followed by
the statesmen at the helm of the American government if it is to
remain a democratic republic. The first of these is that the
national government must have "energy" or "vigor." Both
Washington and Jefferson seem to see this as something grounded in
the institutional framework of our government _ in the
Constitution _ but realized in the continuing practice and action
of our statesmen.96 This theme of an "energetic" or "vigorous"
national government being needed is also seen in such Hamilton-
composed Federalist papers as 23, 25, and 70.97
Washington and Jefferson also put forth points about government
expenditures and the public debt, which are particularly worth
noting at this time when this is a subject of so much public
discussion. Washington, in his famous Farewell Address, instructs
his countrymen to, "[a]s a very important source of strength and
security, cherish public credit." He proposes two practices to
accomplish this: using public credit "as sparingly as possible"
and avoiding the accumulation of debt.98 Jefferson, in his First
Inaugural Address, recommends these practices: "economy in the
public expense, that labor may be lightly burdened" and "the
honest payment of our debts and sacred preservation of the public
faith."99 In a later letter, he emphasizes that perpetual
government debt can interfere with liberty: "We must make our
election between <economy and liberty or profusion and servitude.>
This is because taxation follows debts, "and in its train
wretchedness and oppression."100
Another related point that Jefferson stresses is that the
government should undertake policies which promote or assist the
economy. It should encourage agriculture and commerce as its
"handmaid."101
Both Washington and Jefferson enunciate a number of other
principles which relate to the military and foreign affairs. As
stated above, civilian control of the military is one of these.
Another, according to Jefferson, is "a well-disciplined
militia."102 Washington insists that we must avoid "overgrown
military establishments which under any form of government are
inauspicious to liberty . . ."103 As far as foreign affairs is
concerned, Washington cautioned the nation about the dangers of
foreign influence and of "[e]xcessive partiality for one foreign
nation and excessive dislike for another."104 His administration
is remembered for putting these principles into practice in its
policy of neutrality between England and France.
Jefferson adds one other principle involving the conduct of
government: "the diffusion of information and the arraignment of
all abuses at the bar of public reason."105 What he seems to mean
by this is that the conduct of government must essentially be in
the open, not secret or hidden from public view. This will
prevent abuse or permit it to be exposed and corrected by the
force of public opinion.
Let us now turn to the fourth category of principles enunciated by
the Founding Fathers, those relating to moral and social
conditions necessary for free government. The first of these is
respect for the government on the part of its people and an
obedience and reverence for its laws.106 Adams, as noted above,
said that the laws must be preeminent in a democratic republic;
there must be the rule of law. If there is to be the rule of law,
however, there must be something more than even respect or
obedience for them; indeed, there must be reverence. Adams links
this with virtue in the citizenry, the second condition emphasized
by the Founders which can be pointed to. He says the following:
"that form of government which unites all the virtue, honor, and
fear of the citizens, in a reverence and obedience to the laws, is
the only one in which liberty can be secure and all . . . [made]
to prefer the public good before their own."107
Jefferson and Madison say that something still further is required
in the minds and hearts of the people besides reverence for the
laws: a spirit of commitment to republican principles.108
Madison speaks of "the vigilant and manly spirit which actuates
the people of America." The spirit "nourishes freedom, and in
return is nourished by it."109
The importance of virtue, both for the citizenry and for political
leaders, is also stressed by other Framers. Jefferson writes that
the people are to be trusted so long as they remain virtuous, a
condition which he believes will prevail "as long as agriculture
is our principal object"110 (this no doubt accounts for his belief
in his later First Inaugural Address that it is essential that
free governments encourage agriculture). Hamilton _ in effect,
enunciating a prime principle of the new system of government _
maintains that free government requires that a people have
"strongly connected the virtue of . . . [their] rulers with their
[the rulers'] interest."111 In other words, the political leaders
must be made to see _ the political order must be fashioned to
motivate this _ that acting virtuously is in their interest.
Virtue, then, is one of the factors the Founding Fathers believed
necessary for insuring both respect for the government and laws
and a republican spirit.
The Framers believed that education, religion and morality, in
addition to virtue, were needed to shape respect for the
government, reverence for laws, republican spirit, etc. The
importance of education for a democratic republic appears
frequently in Jefferson's writings. For example, the Bill for the
More General Diffusion of Knowledge, drafted by Jefferson in
Virginia in 1779, endorses education as the means of preventing
even the best forms of government from degenerating into
tyranny.112 He viewed moral education113 and a form of
citizenship education as the means by which people in a republic,
specifically, could be made to see that "it is in their interest
to preserve peace and order."114 Madison speaks of "[l]earned
institutions" throwing "that light over the public mind which is
the best security against crafty and dangerous encroachments on
the public liberty."115 Washington similarly encourages the
development of such institutions, saying that "[i]n proportion as
the structure of a government gives force to public opinion, it is
essential that public opinion should be enlightened."116 John
Adams states that to preserve a democratic republic, "[c]hildren
should be educated and instructed in the principles of freedom."
He insists that "[e]ducation is more indispensable, and must be
more general, under a free government than any other . . . In a
government of three branches, they hope to be called to public
service, where it is necessary."117
A particularly direct acknowledgement of the need for religion and
morality comes from Washington in his "Farewell Address":
Of all the dispositions and habits which lead to political
prosperity, religion and morality are indispensable supports. In
vain would that man claim the tribute of patriotism, who should
labor to subvest these great pillars of human
happiness, these firmest props of the duties of men and
citizens.118
Jefferson, in a famous letter to John Adams late in his life,
pointed to another social condition which he believed is required
by a democratic republic: a natural aristoi of virtue. He writes
this:
The natural aristocracy I consider as the most precious gift of
nature . . . for the government of society . . . May we not even
say, that that form of government is the best, which provides the
most effectively for a pure selection of these natural aristoi
into the offices of government?119
He does not talk, as Hamilton does, about this group of persons
destined to be leaders having to be shown that acting virtuously
is in their own best interest. The virtue is there already; that
is, it is "natural" or present because the people have a natural
inclination to it and have worked to develop it. This type of
aristocracy, however, is not incompatible with republican
government as the old hereditary aristocracy was (Jefferson calls
the latter "artificial aristocracy"). Republican government,
rather, <makes it possible> because free elections are needed to
bring it forth to separate this natural aristocracy from the
artificial.120 (There is thus a symbiotic relationship between
the natural aristoi and republican government. While the latter
is needed to bring it forth, it is Jefferson's whole point in this
letter that republican government needs this natural aristoi to
thrive.)
IV. The Observations of Tocqueville About the Essential Principles
and Conditions for a Democratic Republic
In this final section, we consider the observations of one of the
great students and commentators of the American political and
social orders, Alexis de Tocqueville, about our subject. Studying
Tocqueville enables us to point to the views about the essential
principles and conditions for a democratic republic which
prevailed in the United States of a generation or so after the
Founding Fathers. Examining this period is useful because it is
still close enough to our Founding for the original principles and
ideas to have retained their integrity and vitality and also is a
time by which substantial experience had been gotten in putting
these principles into practice. Since Tocqueville's discussion in
<Democracy in America> is of the attitudes and principles of the
political society he observes and of his conclusions after
examining it _ as opposed to being simply an expounding of his own
political philosophy _ it is a good source for us.
Tocqueville's observations about the essential principles and
conditions can be divided into three categories: geographical,
political, and _ the most numerous _ social-economic. Tocqueville
singles out two geographical factors: the vast, empty,
uncultivated land that Americans were still exploring in his time
and the great natural resources available. He makes clear,
however, that this is only a minor factor in maintaining a
democratic republic, as evidenced by the fact that South America
has the same desirable natural circumstances but has not succeeded
in this. He suggests, particularly, that this natural abundance
helps maintain American democracy because it provides prosperity,
which in turn insures democratic laws.121
As far as political factors are concerned, Tocqueville mentions
the following (most of which are institutional): the federal
system of government (which he calls "one of the most powerful
combinations favoring human prosperity and freedom");122 the way
the judicial power is organized in the U.S. (he refers
specifically to such limits upon the judiciary as being able to
pronounce upon the validity of a law only with reference to a
particular case, making decisions only "on particular cases and
not on general principles," being able to act only when called
upon, and being subject to the Constitution like other political
actors and citizens),123 good laws;124 the existence of "communal
institutions," which "moderate the despotism of the majority and
give the people both a taste for freedom and the skill to be free"
(by "communal institutions," he apparently means legislative
bodies and the like),125 and the fact that the U.S. then had "no
great capital," which he says would result in the destinies of a
whole country being placed in the hands of only a "section of the
people . . . acting on their own."126
It is, essentially, the practical effects of the federal system
that Tocqueville is referring to in the section of <Democracy in
America> where he speaks of how free institutions combat the
negative effects of the ubiquitous individualism of America. He
says that "[t]he law givers of America . . . thought it . . .
right to give each part of the land its own political life so that
there should be an infinite number of occasions for the citizens
to act together and so . . . everyday they should feel that they
depended on one another." This motivates all citizens to take an
interest in public affairs and the public good.127
Tocqueville states that while the physical circumstances are
important in maintaining a democratic republic, and good laws are
even more important, mores are the <most> important factor.128 It
is to these, and generally to social-economic factors, that we now
turn.
The one essentially economic factor that Tocqueville speaks of has
been mentioned already: material prosperity. Prosperity, he
indicates, has an important moderating effect on political
behavior. It tends to temper political extremism and to create an
attachment to law and order.129
Several of the social factors Tocqueville points to involve
attitudes in the citizenry (which include mores). The others
concern, essentially, the means by which the attitudes are shaped.
The attitudes needed are a skill and a taste for freedom (which as
noted, he links to the existence of communal institutions), "a
restless spirit, immoderate desire for wealth, and an extreme love
of independence,"130 great respect and even a willingness to
sacrifice for the common good, and Tocqueville's famous "doctrine
of self-interest properly understood." This latter is defined as
"enlightened self-love [which] continually leads . . . [Americans]
to help one another and disposes them freely to give part of their
time and wealth for the good of the state." It is a kind of
pragmatism which does not have high, noble ideas of virtue, but
prompts many frequent small sacrifices and leads to lesser
virtuous practices. Also, "its discipline shapes a lot of
orderly, temperate, careful, and self-controlled citizens."131
Tocqueville is thus like Hamilton in believing that virtue and
self interest can be made to coincide, Hamilton saying this about
political leaders and Tocqueville of people in general.
Other factors are needed to shape these attitudes or, more
accurately, shape them correctly, because if this is not done they
can be perverted to the harm of the political community. These
factors are education, mores, and, especially, religion and the
Christian religion in particular.
About education, Tocqueville contends that the U.S. Constitution
assumes much diverse knowledge and discernment on the part of the
governed. "[I]t is only suited to a people long accustomed to
manage its affairs, and one in which even the lowest ranks of
society have an appreciation of political science."132 Stated
more generally, "a democracy must . . . have reached a certain
degree of civilization and enlightenment."133 While acknowledging
the importance of education, however, Tocqueville insists that
most people in a democratic republic do not need the same type of
education as the sons of European aristocracy received. Their
education should not be a classical one, but scientific,
commercial, and industrial.134
Tocqueville says that education strongly influences mores, which,
again, he says are <the> critical factor. Mores "can turn even
the most unfavorable circumstances and worst laws to
advantage."135 What he includes as "mores" are not only "habits
of the heart," but "the different notions possessed by men, the
various opinions current among them, and the sum of ideas that
shape mental habits."136 Tocqueville explains the role of
education in shaping mores: "the instruction of the people [in
the U.S.] powerfully contributes to support the democratic
republic. That will always be so . . . where the instruction
which teaches the mind is not separated from the education which
is responsible for mores." Indeed, the relationship between
private mores and habits and public life is emphasized by
Tocqueville when he says that in the U.S., "education as a whole
is directed toward the political life."137
Religion and particularly Christianity, for Tocqueville, seems to
be the <most> important influence in shaping mores, however. He
writes that "in the United States religion . . . direct[s] mores,
and by regulating domestic life it helps to regulate the state"
and "should . . . be considered as the first of their [the
Americans'] political institutions . . ." Noting the "innumerable
multitude of sects" in the U.S., he says that because "all preach
the same morality in the name of God" (he was able to say in his
time, as we cannot today, that "Christian morality is everywhere
the same") it is not important that "all citizens should profess
the true religion but that they should profess religion."138 He
emphasizes the dangers a free people face if they become
irreligious:
[D]oubt invades the highest faculties of the mind and half
paralyzes all the rest. Each man gets into the way of having
nothing but confused and changing notions about the matters of
greatest importance to himself and his fellows. Opinions are ill-
defended or abandoned, and in despair of solving unaided the
greatest problems of human destiny, men ignobly give up thinking
about them.
Such a state inevitably enervates the soul, and relaxing the
springs of the will prepares a people for bondage.
Then not only will they let their freedom be taken from them, but
often they actually hand it over themselves.139
V. Summary and Conclusion
We can thus say that America's early political tradition, the
political philosophers who influenced it, the Framers of our
constitution, and such an astute commentator about our way of life
as Tocqueville pointed to very definite ideas, conditions,
practices, and institutional and legal arrangements that were
needed to sustain a democratic republic. If many of these
elements were not present, or if certain individual ones were not,
liberty would not be present or would not last and tyranny would
quickly follow. All of the elements discussed in this essay must
be said to be important, but some _ because they are mentioned by
so many of the sources examined or mentioned so frequently or are
given special emphasis in the sources _ stand out as more crucial
than others. In the area of governmental institutions, the latter
include: separation of powers (perhaps the most frequently
emphasized factor of any); the concomitant factor of checks and
balances; an independent judiciary; and the existence of a federal
system (even though the latter, in the writings considered, is
referred to mostly as <helping> sustain a democratic republic in
America, not as necessary in a general sense to sustain it). The
most important factors involving <both> institutional matters and
democratic practice are the following: that the makers of laws be
subject to them; that there by, in some sense, a mixed government
with both propertied interests and the people represented; that
the presence of parties and factions to check each other and
insure liberty is desirable; and that the laws must be accepted as
preeminent. In the category of strictly democratic principles and
practice, the following can be pointed to: the view that men have
inherent rights and the purpose of government is to secure them
and promote the common good; popular sovereignty with all the
practices and principles that have been mentioned as falling under
it including those relating to voting; a limitation of the
franchise to those who demonstrate some kind of permanent
attachment to the community; political liberty but with definite
limitations; equality, but with modifications and limitations; and
that the laws embody natural law or established principles of
morality not made by men. The guarantee of political and legal
rights is especially important and certain of these rights, as
follows, can be judged to be preeminent: freedom of the press,
freedom of religion, trial by jury, the protection of life,
liberty, and property, <habeas corpus,> freedom of assembly,
certain due process guarantees, and the prohibition of bills of
attainder. On the matter of the conduct of government, the
practice which stands out is being cautious about the public
credit and avoiding excessive public debt. Finally, on the
subject of social conditions, the following can be pointed to:
the need for religion, education, morality (i.e., Christian moral
beliefs), virtue, respect for law and the common good, a
commitment to freedom, and a natural aristocracy of virtuous men
to rule. The importance generally of mores must also be stressed.
ENDNOTES
1 Martin Diamond, Winston Mills Fisk, and Herbert Garfinkle, <The
Democratic Republic: An Introduction to American National
Government>, 2nd ed. (Chicago: Rand McNally), pp. 89-91.
2 See, for example, Edward S. Corwin, <The "Higher Law" Background
of American Constitutional Law> (Ithaca, N.Y.: Cornell University
Press), Pt. IV (Locke); Diamond, Fisk, and Garfinkle, pp. 125, 474
(Locke); Alpheus Thomas Mason, <Free Government in the Making:
Readings in American Political Thought,> 2nd ed. (N.Y.: Oxford
University Press, 1956), pp. 6-7 (Montesquieu); Russell Kirk, <The
Roots of American Order> (LaSalle, Ill.: Open Court, 1974), pp.
347-358 (Montesquieu). What has commonly been meant by "liberal
democracy," of course, is the same characteristics as are usually
associated with the American "democratic republic," as Diamond,
<et. al>. define it: there is a governmental order involving the
election of a small number of representatives who form a
legislative assembly _ this is the "democratic" aspect _ and there
is also a commitment to maintaining certain constitutional and
political principles and individual rights, such as "due process
of law," equality before the law, freedom of speech and assembly,
protection for minorities, and equal opportunities _ the "liberal"
aspect. (See David Robertson, <A Dictionary of Modern Politics>
[Philadelphia: Taylor and Francis, 1985], pp. 186-187.)
3 Locke's theory could also apply, for example, to a limited
monarchy. Indeed this was most directly what he was seeking to
bring about in England.
4 John Locke, <Two Treatises of Government,> Peter Laslett, ed.,
rev. ed. (N.Y.: Cambridge University Press, 1960), IV, 22, 1-2, p.
324.
5 Ibid., IV, 23, 6-7, p. 325, emphasis in the text.
6 Ibid., VIII, 13-16, p. 375, emphasis in the text.
7 Locke states the necessity for separation of powers in such
passages as the following in the <Second Treatise>: "For he being
suppos'd to have all, both Legislative and Executive Power in
himself alone, there is not Judge to be found, no Appeal lies open
to anyone, who may fairly, and indifferently, and with Authority
decide, and from whose decision relief and redress may be expected
of any Injury or Inconveniency, that may be suffered from the
Prince or by his Order" (VII, 91, 1-7, p. 370).
"But in Governments, where the <Legislative> is in one lasting
Assembly always in being, or in one Man, as in Absolute
Monarchies, there is danger still, that they will think themselves
to have a distinct interest, from the rest of the Community; and
so will be apt to increase their own Riches and Power, by taking,
what they think fit, from the People" (XI, 138, 24-30, p. 407;
emphasis in the text).
"Where the Legislative and Executive Powers are in distinct hands,
(as they are in all moderated Monarchies, and well-framed
Governments) there the good of the Society requires, that several
things should be left to the discretion of him, that has the
Executive Power" (XIV, 159, 1-5, p. 421).
8 Ibid., XIII, 150, 1-2, 9-10; 151, 1-4, pp. 413-414, emphasis in
the text.
9 Ibid., XI, 134, 14-16, p. 401, emphasis in the text.
10 Ibid., 136, 20, 24-25, pp. 404-405.
11 Ibid., 142, 1-4, p. 409.
12 Ibid., 5-10, emphasis in the text.
13 Ibid., 138, 1-2, p. 406, emphasis in the text.
14 Ibid., 142, 11-20, p. 409, emphasis in the text.
15 Locke says that arbitrariness "is not much to be fear'd in
Governments where the <Legislative> consists, wholly or in part,
in Assemblies which are variable, whose Members upon the
dissolution of the Assembly, are subjects under the common Laws of
their Country, equally with the rest" (XI, 138, 19-23, p. 407,
emphasis in the text).
16 Locke, XI, 140, 5-7, p. 408.
17 Ibid., XIV, 163, 10-12, p. 423, emphasis in the text.
18 Ibid., XIX, 212, 26, 29-30, p. 456, emphasis in the text.
19 Ibid., XIX, 220, 4, p. 459.
20 In Volume One, Book II of <The Spirit of the Laws>, which
Montesquieu entitles "Of Laws Directly Derived from the Nature of
Government" the section on the laws in a republic is entitled "Of
the Republican Government, and the Laws in relation to Democracy."
This combination of the terms "republican" and "democracy" and
Montesquieu's ensuing discussion show that he has the same general
idea of a "democratic republic" in mind as Diamond, Fisk, and
Garfinkle (stated above) believe the Founding Fathers did. See
Baron de Montesquieu, <The Spirit of the Laws,> Thomas Nugent,
trans. (N.Y.: Hafner, 1949), One, II, p. 8.
21 Ibid., One, II, pp. 8, 9, 13; XI, pp. 151-152.
22 Ibid., II, p. 8.
23 Ibid., p. 9.
24 Ibid., pp. 11-12.
25 Ibid., p. 20.
26 Ibid., pp. 34, 40-41.
27 Ibid., XIX, p. 310.
28 Ibid., II, p. 45.
29 Ibid., p. 47.
30 Ibid., VIII, p. 110.
31 Ibid., p. 111.
32 Ibid., XI, p. 151.
33 Ibid., p. 150.
34 Ibid., II, p. 34.
35 Ibid., VIII, p. 120. His reasons are set out in this passage:
"It is natural for a republic to have only a small territory;
otherwise it cannot long subsist. In an extensive republic there
are men of large fortunes, and consequently of less moderation;
there are trusts too considerable to be placed in any single
subject; he has interests of his own; he soon begins to think that
he may be happy and glorious, by oppressing his fellow-citizens;
and that he may raise himself to grandeur on the ruins of his
country.
"In an extensive republic the public good is sacrificed to a
thousand private views; it is subordinate to exceptions and
depends on accidents. In a small one, the interest of the public
is more obvious, better understood, and more within the reach of
every citizen; abuses have less extent, and, of course, are less
protected." (Ibid.)
36 Constitution of Virginia _ 1776. Source: Ben Perley Poore,
compiler, <The Federal and State Constitutions, Colonial Charters,
and Other Organic Laws of the United States,> 2nd ed. (Washington:
U.S. Government Printing Office, 1878), vol. 2, 1910-1912.
37 Constitution of Massachusetts _ 1780. Source: Ibid., vol. 1,
p. 957.
38 Ibid., pp. 960-973. It should be noted that the last of these
principles _ a religious qualification for office _ was
specifically rejected by the U.S. Constitution, which forbids
religious tests. Also, Bernard Bailyn writes that many state
constitutional provisions after independence were seen as
manifestations of the doctrine of separation of powers, but he
gives a more accurate explanation of them below. (See Bernard
Bailyn, <The Origins of American Politics> [N.Y.: Alfred A.
Knopf, 1968], p. 79.)
39 Virginia Bill of Rights _ 1776, ibid., vol. 2, p. 1908.
40 Constitution of Massachusetts _ 1780, ibid., vol. 1, p. 957.
41 Virginia Bill of Rights _ 1776, ibid., vol. 2, pp. 1908-1909
and Constitution of Massachusetts _ 1780, ibid., vol. 1, pp. 956-
957. This last quote is from the latter, p. 957.
42 Virginia Bill of Rights _ 1776, p. 957.
43 Stephen M. Krason, <Abortion: Politics, Morality, and the
Constitution _ A Critical Study of Roe v. Wade and Doe v. Bolton
and a Basis for Change> (Lanham, Md.: University Press of
America, 1984), pp. 253-254. Cf. Roscoe Pound, <The Development
of Constitutional Guarantees of Liberty> (New Haven, Conn.: Yale
University Press, 1957), pp. 83-89.
44 Krason, pp. 254-255. Even though the right to a grand jury
indictment or presentment appeared in only a minority of state
constitutions and bills of rights, the view that the grand jury
was an important defense of individual liberties and check on
prosecutors and other officials was apparently widespread in
colonial America. (See George Dargo, <Roots of the Republic: A
New Perspective on Early American Constitutionalism> [N.Y.:
Praeger, 1974], p. 70.)
45 Krason, pp. 256-257. See the book for references.
46 It should be noted that I follow Charles A. Beard's assessment
of the members of the Convention "whose character, ability,
diligence and regularity of attendance separately or in
combination, made them the dominant element." (Beard, "The
Supreme Court _ Usurper of Grantee," in <Essays in Constitutional
Law,> Robert G. McCloskey, ed. [N.Y.: Alfred A. Knopf, 1962], p.
27. Originally published in <Political Science Quarterly>, vol.
27, p. 1 [1912].)
47 Bailyn, pp. 131-135.
48 Ibid., p. 79.
49 Dargo, p. 52.
50 Ibid.
51 Ibid., p. 51.
52 Bailyn, p. 146.
53 Dargo, p. 48.
54 Bailyn, p. 86.
55 Ibid., p. 81.
56 Ibid.
57 Ibid., pp. 124-127.
58 Ibid., pp. 87-88.
59 Ibid., p. 81.
60 Ibid., p. 125.
61 Ibid., pp. 125-127, quoting the New York and Pennsylvania
writers without providing their names.
62 Federalist 10 (Madison), Alexander Hamilton, John Jay, James
Madison, <The Federalist> (N.Y.: The Modern Library, n.d.), pp.
54-62.
63 Alexander Hamilton, "Speech on Compromises," in <The Works of
Alexander Hamilton>, vol. II, John C. Hamilton, ed. (N.Y.:
Charles S. Francis, 1850), p. 430.
64 John Dickinson, "Letters of Fabius on the Federal Constitution"
Letter IV, April 10, 1788, in <Pamphlets on the Constitution of
the United States>, Paul Leicester Ford, ed. (N.Y.: Burt
Franklin, n.d.), p. 182.
65 Edmund Randolph, "Letter on the Federal Constitution," October
16, 1787, in Ford, p. 268.
66 Federalist 47 (Madison), <The Federalist,> p. 313.
67 See Saul K. Padover, ed., <The Complete Jefferson> (N.Y.:
Duell, Sloan and Pearce, 1943), pp. 106, 114.
68 Jefferson, letter to Madison, December 20, 1787, ibid., p. 123.
69 See Marvin Myers, ed., <The Mind of the Founder: Sources of
the Political Thought of James Madison,> pp. 304, 502-503.
70 James Wilson, "Substance of an Address to a Meeting of the
Citizens of Philadelphia," October 16, 1787, in Ford, p. 156.
71 John Adams, "Defence of the Constitutions of the United States
of America," in <The Works of John Adams>, vol. 6 (Boston: Little
& Brown, 1851), pp. 65, 78, 91, 105-106.
72 Madison, "Remarks on Mr. Jefferson's Draught of A Constitution
[for Virginia]" sent to John Brown, October 12, 1788, in Myers, p.
56.
73 Hamilton, remarks in the New York ratification convention, June
24, 1788, in <The Debates in the Several State Conventions on the
Adoption of the Federal Constitution>, Jonathan Eliot, ed.
(Philadelphia: J.B. Lippincott, 1901), vol. II, p. 302.
74 Hamilton, "Speech on Compromises," in J.C. Hamilton, vol. II,
pp. 437, 444, and "Speech on the Senate of the United States" in
the New York ratification convention, 1788, in ibid., p. 453. It
is worth noting that George Washington, in his famous Farewell
Address of 1796, with the first years of actual experience with
the Constitution just behind and theory thus converted into
practice, reaffirms in the strongest terms the essentiality of
separation of powers and check and balances. (See Washington,
<Farewell Address>, General Society, Sons of the Revolution,
booklet edition [N.Y.: 1963, 1982], p. 24.)
75 Federalist 78 (Hamilton), <The Federalist>, p. 504.
76 Hamilton, "Speech on Compromise," in J.C. Hamilton, vol. II, p.
444 and remarks in the New York ratification convention, June 21,
1788, in Eliot, vol. II, pp. 257, 258.
77 Jefferson, "Draft of a Constitution for Virginia," in Padover,
p. 112.
78 Madison, speech of August 7, 1787 at the Convention, redone in
1821 for planned posthumous publication of his Convention notes,
in Myers, p. 506.
79 Ibid., pp. 507-508.
80 Jefferson, letter to Samuel Kercheval, July 12, 1916, in
Padover, p. 288; Adams, "Defence" in <Works>, vol. 6, p. 74; John
Dickinson, "Letters of Fabius on the Federal Constitution," letter
II, April 10, 1788, in Ford, p. 171. Hamilton makes the point
about Senate terms being long in his speech in the New York
ratification convention, June 24, 1788, in Eliot, Vol. II, p. 307.
The extent to which the idea of short terms and frequent elections
was accepted at the Framers' time is seen by the fact it is
emphasized also by such Anti-Federalists as Melancton Smith and
John Lansing, Jr. in the New York ratification debate (Eliot, vol.
II, pp. 249, 295) and in the writings against the Constitution by
Elbridge Gerry, see "Observations on the new Constitution . . ."
in Ford, pp. 9, 11, 12.
81 Hamilton, N.Y. ratification debate, June 21, 1788, in Eliot,
vol. II, p. 257. Jefferson concurs with this. See his First
Inaugural Address, in Padover, p. 386 and his letter to Samuel
Kercheval, July 12, 1816, in Padover, p. 288.
82 Diamond, Fisk, and Garfinkle, p. 10.
83 See, for example, Charles A. Beard, <An Economic Interpretation
of the Constitution> (N.Y.: Macmillan, 1913); Staughton Lyrd,
<Class Conflict, Slavery and the United States Constitution>
(Indianapolis: Bobbs-Merrill, 1967); and Michael Parenti,
<Democracy for the Few>, 3rd ed. (N.Y.: St. Martin's, 1980).
84 Jefferson, letter to Samuel Kercheval, in Padover, pp. 287-288.
85 Hamilton, Speech on Compromises, ibid., in J.C. Hamilton, vol.
II, p. 453.
86 Madison, letter to unknown correspondent, 1833, in Myers, p.
530.
87 Adams, "Defence," in <Works>, vol. 6, p. 64.
88 Edmund Randolph, speech in the Virginia ratification
convention, June 16, 1788, in Eliot, Vol. III, p. 84.
89 Washington, p. 16.
90 Jefferson, letter to Samuel Kercheval, July 12, 1816, in
Padover, p. 289.
91 Jefferson, First Inaugural Address in Padover, p. 384.
92 Adams, "Defence," in <Works>, vol. 6, p. 197 (military);
Dickinson, in Ford, letter IV, p. 186 (taxation); Hamilton,
"Speech on compromises" in J.C. Hamilton, vol. II, p. 430
(taxation and military); Jefferson, First Inaugural Address, in
Padover, p. 386 (military and drafts of Declaration of
Independence and Proposed Constitution for Virginia, 1776 (by
implication, taxation), in Padover, pp. 31, 104.
93 Adams, "Defence," in <Works>, vol. 4, p. 295.
94 Ibid., vol. 6, p. 56.
95 Ibid. See also vol. 4, pp. 293-295.
96 See Washington, p. 18, and Jefferson, First Inaugural Address,
in Padover, p. 386.
97 See <The Federalist,> pp. 141-146, 153-158, 454-463.
98 Washington, p. 26.
99 Jefferson, in Padover, p. 386.
100 Jefferson, letter to Kercheval, ibid., pp. 290-291.
101 Jefferson, First Inaugural Address, ibid., p. 386.
102 Ibid.
103 Washington, p. 12.
104 Ibid., pp. 30, 32.
105 Jefferson, First Inaugural Address, ibid., p. 386.
106 See Adams, "Defence," in <Works,> vol. 6, p. 208; Washington,
p. 16.
107 Adams, ibid.
108 See Jefferson, letter to Kercheval, in Padover, p. 288 and
Madison, Federalist 57, in <The Federalist,> p. 373.
109 Madison, ibid.
110 Jefferson, letter to Madison, December 20, 1787, ibid., p.
123.
111 Hamilton, "Speech on the Senate" in New York ratification
convention, 1788, in J.C. Hamilton, vol II, p. 453.
112 Jefferson, "A Bill for the More General Diffusion of
Knowledge," in Padover, p. 1048.
113 Jefferson, letter to Thomas Law, Esq., June 13, 1814, in
Padover, pp. 1032-1034.
114 Jefferson, letter to Madison, December 20, 1787, in Padover,
p. 123.
115 Madison, letter to W.T. Barry, Aug. 4, 1822, in James Madison,
<The Forging of American Federalism: Selected Writings,> Saul K.
Padover, ed. (N.Y.: Harper and Row [Harper Torchbooks], 1953), p.
313.
116 Washington, p. 26.
117 Adams, "Defence," in <Works,> vol. 6, pp. 197-198.
118 Washington, p. 24.
119 Jefferson, letter to John Adams, Oct. 28, 1813, in Padover, p.
283.
120 Ibid., p. 284.
121 Alexis de Tocqueville, <Democracy in America>, J.P. Mayer,
ed. (Garden City, N.Y.: Doubleday [Anchor], 1969), book one, part
II, pp. 280-281, 306.
122Ibid., one, I, p. 170.
123 Ibid., one, II, p. 287 and one, I, pp. 99-105. Tocqueville
makes clear that judges were not intended to legislate in the U.S.
when he says, "If he [a judge] pronounces upon a law without
reference to a particular case, he steps right beyond his sphere
and invades that of the legislature" (p. 100).
124 Ibid., one, II, p. 307.
125 Ibid., one, II, p. 287.
126 Ibid., one, III, p. 279.
127 Ibid., two, II, p. 511.
128 Ibid., one, II, p. 307.
129 See ibid., one, II pp. 287-288.
130 Ibid., one, II, p. 284.
131 Ibid., two, II, pp. 526-527.
132 Ibid., one, I, pp. 164-165.
133 Ibid., one, II, p. 225.
134 Ibid., two, II, pp. 476-477.
135 Ibid., one, II, p. 308.
136 Ibid., one, II, p. 287.
137 Ibid., one, II, pp. 304-305.
138 Ibid., one, II, pp. 290-291.
139 Ibid., two, I, p. 444.
Stephen M. Krason earned his Ph.D. in political science and his
J.D. from the State University of New York at Buffalo. He is
Assistant Professor of Political Science at the University of
Steubenville and Adjunct Research Associate of the Intercollegiate
Studies Institute.
This article was taken from the Fall 1992 issue of "Faith &
Reason". Subscriptions available from Christendom Press, 2101
Shenandoah Shores Road, Ft. Royal, VA 22630, 703-636-2900, Fax
703-636-1655. Published quarterly at $20.00 per year.
Copyright (c) 1996 EWTN
-------------------------------------------------------
Provided courtesy of:
Eternal Word Television Network
PO Box 3610
Manassas, VA 22110
Voice: 703-791-2576
Fax: 703-791-4250
Data: 703-791-4336
Web: http://www.ewtn.com
FTP: ewtn.com
Telnet: ewtn.com
Email address: sysop@ ewtn.com
EWTN provides a Catholic online
information and service system.
-------------------------------------------------------