Today I am beginning with a quote that is near and dear to my heart, so much so that it has a prominent place at the beginning of my book.
It is a quote by Professor Bernard Hennessey who, in 1963 described the US political system as:
conceived for deadlock and inaction. And, despite some brilliant, if fitful displays of presidential leadership, It remains today as it was conceived, a system for deadlock and inaction.
The quote sums up what I have said and in a previous column/video, I talked about the need to upstream, to go back to the Founding to try to understand why the government is so unresponsive, or to use Hennessey’s words, so prone to “deadlock” and “inaction.”
The short answer is it was designed this way.
The reason why the US Framers structured the system this way, however, is a longer story.
After their experience living under the King of England, who they described as a tyrant, the Framers were committed to setting up a free government.
About three decades prior to the American Revolution, Charles Louis de Secondat, Baron de Montesquieu, wrote a monumental text called Spirit of the Laws. It had an enormous impact on thinkers around the world, including the Framers of the US.
Montesquieu recognized the historic import of the book, writing shortly after its publication:
I can say that I have worked on it my whole life… I swear that this book nearly killed me; I am going to rest now; I shall work no more.
True to his word, following the book’s release, Montesquieu never published again.
Montesquieu may have retired from writing, but the impact of his work was far reaching.
In Spirit he argued that the end, or purpose, of a free government was to ensure liberty or freedom.
While we commonly define liberty today as freedom from governmental power, Montesquieu defined it more specifically as freedom from the state or “right to do everything the law permits” unencumbered by the state.
If we reflect on the fact that many of the colonists came to the New World to escape governmental persecution, most prominently to protect their right to worship as well as the fact that they fought a bloody Revolutionary War to throw off a despotic government that was not respecting the rights of the people rights, it is not surprising that Montesquieu’s message resonated with the Framers.
The colonists, revolutionaries, and Framers main and shared goal was to protect liberty and ensure against the abuse of governmental power.
We see this reflected in Declaration of Independence which reads
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Likewise in the Pledge of Allegiance where we pledge to the ‘U.S. Flag and the republic for which it stands... with liberty and justice for all."
The only question then for the Framers was how to design a system which achieved this goal of protecting liberty?
They found their answer in Montesquieu’s Spirit of the Laws where he said the best way to protect liberty is ‘trias politica’ or separation of power.
Which, if you think about it, makes perfect sense. How else to protect liberty but divide governmental power.
And in Montesquieu’s case he advised dividing the power of the state, which had until that point been in the body of one person, the king, into three parts: the legislative, the executive, and the judicial. Each of which possesses different powers and responsibilities.
The US Constitution, as well as many other state constitutions, have adopted Montesquieu’s tripartite system.
What we sometimes describe as the “Madisonian system” is Montesquieu’s separation of powers, coupled with other, additional, divisions of power that Montesquieu did not even imagine.
It is fair to ask why the Framers were intent on dividing power even more than Montesquieu counseled?
The answer is that they feared that mere separation of power, of the kind Montesquieu advised, may not be enough to guard and protect liberty.
So the Framers, worked in an additional divisions, such as checks and balances, the process by which each branch is given some power over the primary activities of the others.
For instance, the legislature has the power to make laws, but they gave the executive a little bit of that power over when they gave the president the power to veto the laws.
Likewise, while the president is the Commander in Chief of the military, the legislature has a bit of that power because they have the power to declare war, and so on – there are many other checks and balances built into the system
On top of these two types of divisions of power – separation of powers and checks and balances – they added others as well, such as bicameralism (i.e., the division of the legislature into two bodies, the House and Senate) and federalism (i.e., the separation of power between national, state, and local governments).
I sometimes say, that when it came to dividing power to protect liberty, the Framers were Montesquieu on steroids; particularly Madison who never met a division of power he didn’t want to adopt.
One of my favorite anecdotes about Madison is that despite the amount of div he built into the system as the Convention came to an end he wrote to Thomas Jefferson, who was still in France, that they had not gone far enough in dividing power to ensure liberty.
From our vantage point today, it is shocking to imagine that Madison’s primary concern was that they had not gone far enough to divide power. Nothing could be further from the truth. In fact, it is not an overstatement to suggest that if anything they succeeded too well.
This is why Hennessey and others describe the US system as ‘conceived in inaction and built for deadlock.’
There is no question that the Framers adopted these divisions for a very good reason, to preserve liberty.
There is also no question that as a result, getting things done in the US, except in times of crisis, has been difficult from the start.
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Notes:
Jeanne Sheehan American Democracy in Crisis
Bernard C. Hennessey The Deadlock of Democracy
Montesquieu, Spirit of the Laws
