The Philosophical Origins of Coequality
David J. Siemers
Department of Political Science
University of Wisconsin-Oshkosh
[email protected]
(920) 424-0435
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Paper prepared for presentation at the Annual Conference of the Western
Political Science Association, March 2012, Portland, OR.
The Philosophical Origins of Coequality
The concept of coequal branches of government is familiar to most Americans.
Regardless of the veracity of the concept, which is dubious (see Siemers and Beach),
most American citizens blithely agree that the US Constitution sets up three coequal
branches of government. While not often a subject of discussion within Political
Science, Charles O. Jones’ Separate but Equal Branches touts the idea as well, noting that
“by design [the American government] is, and has been from the start, a separated
system with three coequal branches sharing, sometimes competing for, powers” (viii).
Even the ten minute welcome video in the new visitors’ entrance to the US Congress
proclaims that the Congress is a “coequal branch of government.”
This particular claim does not have a long provenance. My coauthor Paul T.
Beach and I have demonstrated that the idea that president, Congress and the federal
judiciary are coequal in power was not regularly made by any president until Richard
Nixon. Nixon asserted his coequality with Congress in attempts to fend off their
investigations during the Watergate era. He reasoned that if the president is equal to
Congress, he could stop any Congressional action if he opposed it strenuously enough
(Siemers and Beach). This seemingly Newtonian “equal and opposite” claim for
American institutions was, ultimately, not acceptable to the Supreme Court in this
instance (though they affirmed the notion of coequality in US v Nixon and elsewhere)
and Nixon resigned before he could be impeached. Nevertheless, part of his legacy to
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future presidents was to give them a vocabulary of coequality. Each president since,
with the exception of Jimmy Carter, has used and endorsed this idea.
Yet this viewpoint arose, at least partially, out of an earlier ideal that had
prominent advocates. This earlier ideal of coequality was present during the founding
era. This was not a coequality of president, Congress, and Judiciary. Rather it was a
coequality which encompassed the House, the Senate, and the president. It was a
theory of institutional dynamics propounded by a distinct minority of the political
voices active during the founding generation. Those who believed in this first
American version of coequality tended to be better educated than their opponents and
had been taught (or had read) that the English system of government was superior to
others because it approximated the balance of power between institutions required for
good government. John Adams and Alexander Hamilton were the most prominent
founders who espoused this form of coequality. Others include Elbridge Gerry, a
Harvard graduate who rose to be Vice President and George Mason, probably best
known today as a staunch defender of individual rights during the founding era.
This paper first lays out the key components of this version of coequality, using
John Adams’ thinking as my exemplar. After that I delve back into the history of
political theory to demonstrate where Adams and his fellow “coequalists” learned the
key tenets of this portion of their political thought. This exploration takes us to ancient
Greece and Roman sources, as well as more modern sources. These individuals learned
from and borrowed from one another, though they did have their differences. But the
salient point for the founding generation’s coequalists is that they viewed the fact that a
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variety of thinkers offered up similar ideas over millennia as confirmation that they
were correct.
John Adams: Founding Coequalist
While there are significant differences between the political thought of John
Adams and the other founding generation coequalists, these differences tend to be
about non-institutional matters—the proper foreign policy in a republic, for instance, or
how psychology works to impact politics, for another. While a full explication of the
state of the coequality argument at the founding would take the views of a number of
people into account, for the purposes of this paper I use John Adams as the prototypical
founding-generation coequalist. Adams rose to greater heights in politics, wrote and
spoke more about this idea, and had a longer political career by far than any of the
others who believed in institutional coequality.
The foundational axiom of the coequality argument is that there should be a
separation of powers and a power-sharing arrangement between these separated
institutions. Adams argued for this frequently and a good example of his position is
contained in his notes for a 1772 oration in Braintree. Adams listed three “simple”
forms of government, a typology based on whether political power was wielded by one
person (monarchy), by a well-placed few (aristocracy), or by many citizens
(democracy). He proceeded to lay out the failings of each of these simple forms during
the speech, then argued that a combination of them was desirable to avoid the foibles of
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each. He concluded, like many had before him, that “the best Governments of the
World have been mixed” (Diary and Autobiography 2: 58).
Adams’ thinking was remarkably stable on this matter. In early notes to himself
Adams concluded that “no simple Form of Government, can possibly secure Men
against the Violences of Power” (Works of John Adams, 1:83). The basis for his
endorsement of the “mixed” regime were the tendencies of human nature: unchecked
self interest would nearly always prove problematic. Therefore if one apportioned rule
exclusively to one person or group, they would rule for themselves to the detriment of
others. Coming back to these same words in reviewing his notebooks nearly 50 years
later Adams wrote a marginal comment, calling this idea “the Creed of my whole life”
(Diary 2: 58). Not even the many could rule well by themselves, because they would be
tempted to make life hard for those with greater talent and property. In fact, Adams
believed that democracy was the worst of the three simple regimes because “it never
lasts very long. It soon wastes, exhausts, and murders itself” (Works, 6: 484).
There are many possible moves within the mixed regime, begging the question
“what kind of mixed regime did Adams (and his compatriots) endorse?” The most
basic answer is that there were to be three institutions involved in lawmaking: a
bicameral legislative branch with an independent executive. This structure could be
used to replicate a balance between the one, the few, and the many. There should be a
smaller chamber of the legislature for the few, and a larger chamber representing the
many, with a monarch or president expertly standing watch over both.
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These three entities were to be bound together in what Adams often referred to
as a “triple equipoise.” C. Bradley Thompson calls this approach “tricameralism” and
dubs it “the unique and defining component of Adams’s theory of a mixed and
balanced legislature” (249). It is important to note that Adams’s primary institutional
concern here is not executive administration of the law. This was taken as a given by
Adams. His concern about coequality or balance in the system referred to how one
arranged the legislative process. The executive would administer the law, but the
linchpin of the system was that he would possess a substantial share of legislative
power. Otherwise, Adams feared, the legislatures would encroach on legislative
authority and the government would not be stable. Thus the critical expression of
coequal power was a “negative” concept: could the president stop legislation, just as
surely as the two branches of the legislature? To be coequal, the president needed one
thing: an unqualified veto power.
The legislative branch, split into two entities, were not only larger and smaller.
Each represented a different “estate” or portion of the populace. The lower legislative
chamber with more representatives in it, represented the citizens at large—it was the
democratic branch. The upper chamber would represent an aristocracy of the best and
brightest in the nation. Not coincidentally these people would possess much more
property on average than the democratic element. They would protect property and
the right to it from the grasping nature of the democratic element. Meanwhile the
democratic branch would prevent the aristocratic branch from tyrannizing over the
common citizen. The president was a locus of independent judgment, mediating
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between the two estates and judging their actions to consider whether they were in the
nation’s best interest. Forcing both major estates to compromise was what would
produce a republican form of the mixed regime, and approximate a more general good
than either estate could produce alone.
Adams was often ridiculed for this political philosophy in his own time. The
historian Gordon Wood has famously suggested that Adams’ thinking was “irrelevant”
even when he was president, because very few people in the nation agreed with him.
His defenses of aristocracy and monarchy made him an easy target in a nation where
rhetoric had turned more democratic. For his own part, the second president felt
massively aggrieved and severely misunderstood on this matter. He concluded that
any society segregated itself into a more wealthy and well positioned few and the
democratic mass which was not as skilled or well off. Acknowledging this was simply
accepting what human nature produced. Segregating the aristocratic element from the
democratic element was a way of protecting average citizens rather than allowing
aristocratic interests and values to be unchecked.
Similarly, Adams was pilloried for his view that the English had created the
government that was closest to model mixed regime. But with the House of Commons,
the House of Lords, and the monarch each able to stop legislation, Adams considered it
to be a genuinely coequal arrangement satisfying the most important criterion of good
government. The “well born” were segregated from the average citizen and the King
could review all of what these two institutions sent forth, negativing anything which
was not, in his estimation, good for the nation. England had thus “reduced the great
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ideas to practice, and brought it nearly to perfection” (Works 4: 296). The American
governments—at least the ones created in the immediate aftermath of the American
Revolution were good, in that they replicated the tripartite model of the English
government. However, their biggest flaw was that their executives were too weak and
the democratic estate too pronounced.
Adams himself had written most of the revolutionary constitution of
Massachusetts and his work was informed by these principles. As the nation debated a
new constitutional form while he was America’s leading diplomatic agent in Great
Britain, he would root for the mixed constitution to prevail. So, in sum, Adams’s
coequality formulation goes something like this:
1. humans are typically selfish and that makes governing a challenge
2. “simple” regime types, with one person or one group in power fail because of #1
3. there should be a mixed republic, with a bicameral legislature and independent
executive
4. the lower legislative chamber should represent “the people”;
5. the upper legislative chamber should represent a merit-based aristocracy, and with it
property
6. each of the three entities in #3 should possess a unilateral ability to stop legislation
7. the triple veto of #6 will moderate legislation, producing an approximation of the
common good
8. the English government is a good approximation for such a government
To be sure, none of the founders believed that this is exactly what had been set
up in the Constitution. There were obvious similarities, however: a bicameral
legislature with different selection mechanisms, an independent executive who was
granted a major legislative role, and the need for compromise among these three
institutions to produce law. But the system was not quite “balanced,” according to
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them. Some lamented the small size of the House of Representatives, fearing “the
people” would not be adequately represented. This made Elbridge Gerry and George
Mason Antifederalists. They opposed the Constitution’s ratification unless the popular
estate was better represented. Adams was less concerned about that matter than he was
about the weakness of the presidency. He suggested that while “the house and senate
are equal…the third branch, the essential, is not equal.” As a result Adams believed
that “the legislative power will increase [and] the executive will diminish” (450).
Coequality was not built into the Constitution and that made it an unstable
arrangement.
But where did Adams pick up these ideas? While some make the case for him as
an innovative political thinker (e.g. Thompson, Rossiter, Howe), Adams himself
thought otherwise. In an 1813 letter to Thomas Jefferson, Adams suggested that he had
said “nothing new on the Subject of Government” (Cappon, 357). Adams certainly did
cobble together ideas to make his own unique political thought, but even so the pieces
he put together typically came from others (Siemers, chapter 2). This makes finding the
sources of Adams’s views important, as these are the foundational thinkers who have
contributed profoundly to political discourse in the United States by suggesting that
there should be a system of coequal institutions with “checks and balances” prevailing
among them.
Aristotle
Aristotle’s assumptions about politics were far different from Adams’s,
idealizing as he did the city state as the locus of government. However there are strong
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intimations of the founding coequalists’ system within Aristotle. Additionally, every
later thinker who influenced Adams in this regard read and was influenced by
Aristotle. The “improvement” they believed they made on his thinking was tinkering
and perfecting more than offering up a wholly different alternative.
In The Republic, Aristotle’s teacher Plato presented a regime typology and an
explanation of how political development occurred based on the logic of the various
regime types he discerned. One kind of regime naturally led to another. Plato posits
five kinds of regime: aristocracy (rule of the few for the good of the whole city),
timocracy (rule of the honored), oligarchy (rule of the few for themselves), democracy,
and tyranny (rule of an individual for himself), (545a-d, 223). In The Politics, Aristotle
adjusted and rounded out this typology into the form familiar to and accepted by
Adams.
Plato emphasized how a regime’s character reflected the character of the
individuals who ruled. This meant he did not focus primarily on how many people
were ruling but on his perceived personality typology. Aristotle decided to take a less
psychological and more numerical approach. Basing his views on his collection of the
constitutions of city states, Aristotle changed the typology to what was essentially a 3X2
table. One axis was simply how many people ruled (one, a few, or many) and the other
was whether the ruler(s) worked for the benefit of the city as a whole or only selfishly,
for himself (or themselves). This produced a six fold typology with one good and one
bad regime for each numerical possibility. Thus in Book III, chapter 7 Aristotle
introduces kingship and tyranny; aristocracy and oligarchy; and polity and democracy.
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This is the same typology Adams was employing in his Braintree address and which he
hoped institutional engineering would transcend.
The problem with the three “bad” types of regime is obvious. They are, by
definition, bad, engaging in actions that harm and alienate a significant portion of the
community. They are not a “partnership” aimed at “living well” (3.9, 99) and they do
not achieve “justice…[which] is the common advantage” (3.12, 103). The selfishness of
the many in a democracy yields “the extreme of injustice.” “If the majority distributes
among itself the things of a minority, it is evident that it will destroy the city” (3.10,
100). Yet a government run only by the wealthy is also a danger too because the
“multitudes have an argument of some justice to make against those claiming to merit
authority over the governing body on the basis of virtue and…on the basis of wealth”
(3.13, 106). The mass of citizens is competent to judge certain matters, thought Aristotle,
and their participation helps ensure that the regime is as good as it can be. Because the
good regime is to aim at the common advantage, tyranny is the worst of all the bad
regimes because none but a single person ends up well satisfied (4.2, 120).
Yet even the good simple regimes are problematic because of the danger that
they are so tenuous. One could have a group of the wealthy who would aim to rule for
the good of the whole city, or a king who would might try to do so. Given their limited
perspectives they do not really know the interests of others. “People are bad judges
concerning their own things,” (3.9, 97) notes Aristotle. Thus, if almost anything is
decided by one estate without reference to the other there will almost inevitably be
“inequality and injustice” (6.3, 185). Furthermore, generational replacement quickly
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ensures that the well intentioned group ruling at one time will be replaced by others
who think more selfishly. If even well intentioned groups do not make better decisions
without the input of others, the prescription is clear—involve both the aristocracy and
the demos in the governing of the city.
Enter the mixed regime, or “polity,” Aristotle’s fairly obvious solution given the
regime typology he went to pains to describe. “Simply speaking, polity is a mixture of
oligarchy and democracy” (4.8, 130). Such a regime was characterized by compromise
(4.9) and if well constructed it “should be held to be both [a democracy and an
oligarchy]—and neither” and “none of the parts of the city generally would wish to
have another regime” (4.9, 132). Aristotle held out the possibility that there could be
many different moves within polity. There was no one obvious set of institutions that
should be set up. Nevertheless, it was clear to him that aristocrats were better office
holders than others and that average citizens possessed better judgment than aristocrats
(3.11). This suggests the possibility of elections for positions that would be filled by a
city’s more well-known and well-heeled individuals. They might, in turn, bring matters
to the populace to pronounce judgment on them, as in the Athenian trials.
Thus the first two building blocks of Adams’ mixed regime are established in
Books III and IV of Aristotle’s Politics, as well as a portion of the third postulate
Humans are self-regarding and thus even when well meaning are not particularly adept
at governing. A variety of individuals have to be involved in government to be sure
that no one individual or set of people dominates others. The key problem of
government is that one group or individual will possess power to the exclusion of
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others. That almost never works well. Thus, ideally there should be a mixed
government, a polity. Since populations generally divide into an aristocracy and a
demos it is critical that these two estates share in governing somehow.
Thus it is Aristotle who helps us, first and foremost, to make sense of the
founding coequalists. Yet Aristotle’s ideas about the mixed regime are significantly
different from Adams’s. Aristotle is particularly attentive to the conditions within a
polity, suggesting that a large middle class is, in and if itself, a kind of mixture of estates
(4.11, 134). This is why he praises the cities which have a large middle class. They are
stable because a wide swath of the populace are property owners, with an interest in
promoting stability but also in being fair to the many (4.11, 137). Adams did not believe
that the aristocracy and the mass could be bridged in this way. The aristoi and the demos
were permeable categories to him, but one was either in one group or in the other and
every society divided itself into these two categories.
Adams was also a much more formal institutionalist than Aristotle. If there are
the same two classes in every nation, then the same institutional model is required to
balance between these groups everywhere. Aristotle’s institutional prescriptions are
significantly more fuzzy—first because to him a city’s institutions had to match up with
the nature of its populace which was variable (3.18, 116). Second, Aristotle seems only
to discuss holding “offices” and “judging” as institutions. This may be a result of
institutional forms being less developed in Ancient Greece than in modern America.
Adams, unlike Aristotle, invites the demos to participate in an institution of government
itself. Aristotle, meanwhile, seems to relegate their activity to voting and serving on
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juries—not precisely what we call the formal institutions of government today (3.11,
102; 4.13, 137). Third, Aristotle had not acknowledged the difference between
legislating and executing and thus a tripartite system of institutions did not seem
available to him. At the very least he did not separate out an executive entity from the
legislative power and give it a role in balancing the two estates. With this, the later
items in the list of eight characteristics of the coequal regime are unavailable to Aristotle
to develop and we must look to additional sources.
Polybius
Regarding the mixed regime, Aristotle took the approach of a sociologist more
than he did that of an institutional political scientist. He believed that socioeconomic
conditions rather than political institutions were the primary determinant of whether a
regime was (or could be) balanced. While Adams and the early American coequalists
did not discount social conditions, they took a different approach toward institutions.
Adams’ generation of American leaders, more than any other set of leaders in any
cultural milieu approached constitutions as if they were the critical variable in the
equation of how to make good politics. They believed that through the proper
construction of political institutions they could make the world a better place. Adams
was the foremost believer among these “institutional engineers.” In moving forward
from Aristotle we have to discern where Adams picked up the idea that institutions
more than social conditions yielded good government.
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While the final answer to this is complicated in that there is an integrated web of
figures who taught Adams this, antiquity first provided a counterpoint to Aristotle on
this point. The person to do so was Polybius. As William and Alan Ebenstein relate,
Aristotle’s
mixture was one of social and economic groups and classes and not of
branches of government, and his system of constitutional government
(polity) was based on the principles of the wealth of the few and the
freedom of the many (poor). By contrast, Polybius’s idea of the mixed
constitution implies a blend of different principles of government
authority (117).
Polybius posited that the cycling of regimes was due more to the inherent faults of
simple regimes than to a lack of fit between regime type and social conditions. A
positive example of stability facilitated his thinking. The Roman republic combined
elements of monarchy (consuls), aristocracy (the Senate), and democracy (popular
assemblies, juries and tribunes). Rome endured because it had found the correct
institutional arrangements. By extension nearly any polity could succeed with the
proper constitution.
Working with the familiar six fold typology of regimes, Polybius wrote “each
constitution has a vice engineered in it and inseparable from it. In kingship it is
despotism, in aristocracy oligarchy, and in democracy the savage rule of violence”
(ibid., 122). Degeneration from the good to the bad and from the one, to the few, to the
many, was inevitable. Luckily smart politicians, like Lycurgus of ancient Sparta, had
discerned this natural tendency. Even better, Rome had created a system where each
part of the constitution had the power to restrain the others. This form was both
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“adequate to all emergencies” and during peacetime kept each estate within its bounds,
“because any aggressive impulse is sure to be checked” (125).
Polybius’ thinking represents a significant step forward in regard to postulates
#3 through #6 in the listing above. We do not yet have the prescription of a bicameral
legislature in place, but there is the expectation that there will be three institutions
involved in governance, each with significant power. Neither can we claim that
postulates #4 and #5 (lower house representing the people and upper house
representing the aristocracy) are quite satisfied either, because it is not clear that the
aristocratic institution and the popular institution are as tightly yoked as the two halves
of a bicameral legislature inevitably are, having concurrent authority over a range of
matters. Yet there is a clear emphasis on institutionally-induced stasis as a solution to
tyranny. Polybius’ mixed regime does not take the precise form as Adams’ vision,
where the legislative process was the locus of checks, however. By contrast Polybius’s
Rome works more on a combination of “separated institutions sharing powers”
required to make the nation operate and peer pressure. Nevertheless we approach
much closer to postulate #6 than Aristotle had. Government institutions themselves
actively forestall tyranny if well constructed.
Machiavelli and Harrington
More than any other individual, Niccolo Machiavelli helped to revive
enthusiasm for the mixed constitution during the modern era. Aristotle’s six simple
regimes dutifully appear at the opening to The Discourses as well as the understanding
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that the normal state of political development is to cycle through them, a tumultuous
result (1.2). Better by far to have a mixed republic which could afford some modicum of
stability and prevent the populace from killing each other. As a Florentine with grand
political hopes for the Italian peninsula, Machiavelli naturally idealized the Roman
republic, just as Polybius had.
Yet in several ways Machiavelli was actually a step backward on the way to the
founders’ notion of coequality. His was a less institutionally-focused version than
Polybius’. Each estate needed institutional representation, but to Machiavelli the
purpose of this representation seemed as much psychological as actual. What was
important was that the different estates felt represented more than that there was an
actual balance of interests between estates. His conviction that in any state there are at
most only forty or fifty people who “rule” (1.16, 156), meant that the “many” and even
the aristocratic estate were not truly represented but only benefited by proxy, from
powerful people who possessed interests similar to them. With the many simply
seeking not to be dominated (1.5, 116), there is also a sense that the balance of interests
spoken of by others either does not matter or does not well describe the political
dynamics that Machiavelli perceived.
Machiavelli also does not help us advance intellectually toward the thinking of
Adams and his compatriots because he believed that “no one department and no one
official in a state should be able to hold up proceedings” (1.50, 233). His version of the
mixed constitution did not emphasize formal institutional checks and balances but
rather very public wrangling (1.4, 1.6). A public relations battle and brinksmanship
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over principles were to determine the parameters of policy in the mixed regimes as it
seemed to have done so in Rome. In fact, Machiavelli basically proclaimed the
arrangement described in postulate #6 to be dangerous.
To move toward Adams’ thinking we must move to a different political context,
forward in time and northwest in direction. On the eve of the English civil war, in early
summer 1642, tensions between King Charles I and parliamentarians reached a fevered
pitch. In this context Charles’ own advisers, Viscount Falkland and Sir John Colepeper,
wrote and persuaded the king to issue a declaration recognizing England as a mixed
regime. The declaration was titled His Majesty’s Answer to the Nineteen Propositions of
Both Houses of Parliament. As J.G.A Pocock writes in The Machiavellian Moment, “in
essence, [the Answer] asserts that the government of England is vested in three estates,
the king, the lords, and the commons, and that the health and the very survival of the
system depend upon the maintenance of the balance between them” (361). Interesting
words from a court which heretofore insisted on the divine right of the sovereign
monarch. This assertion of the need for balance was not an olive branch to Parliament.
Nor was it a carefully considered philosophical preference. Rather it was a desperate
attempt to cement the permanence of the monarchy.
Though the Answer moved the debate about institutions in England tantalizingly
closer to what Adams had in mind, it took James Harrington’s The Commonwealth of
Oceana, building on the Answer, to convert mixed government into a favored ideal
instead of a defense mechanism. Harrington, like many others, had keenly felt the
trauma of the English civil war. Unlike Hobbes, who resolved from this series of events
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that there should be a single unchallenged locus of power to prevent similar troubles,
Harrington believed that requiring institutional cooperation was the better solution.
Thus in the Commomwealth, he envisioned a bicameral legislature, with the two
chambers representing different estates, both of which would have to agree on
something in order for it to become law.
Like Aristotle, Harrington suggests that the distribution of property in a nation
determines proper political outcomes. Institutional power must be in “balance,” a
favorite Harrington word, with the power of each estate. Note that balance does not
mean “equal” to Harrington so much as “in harmony with” or “in equilibrium.” In fact,
if the total amount of property owned by the citizenry generally would be equal to that
owned by the aristocracy or the monarch. In fact, this equality of power and property
constitutes a nightmare scenario for him, it would be a nightmare scenario. “When a
prince holds about half the dominion, and the people the other half…the government
becomes a very shambles” (186). And when there is equality of property holding
between the aristocracy and the demos “there is no remedy but the one must eat out the
other, as the people did the nobility in Athens, and the nobility the people in Rome”
(186).
Harrington believed that the troubles in England stemmed from a change in the
distribution of power which more and more came to favor the people, without a
corresponding change in the power of political institutions. Thus English institutions
were out of balance with the distribution of property. And when the citizenry obtained
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a roughly equal amount of property as the other estates without a corresponding in
crease in the power of the Commons, the nation became a powder keg.
Though inspired by Aristotle, Harrington’s prescriptions were more normative
than descriptive. Harrington envisioned his favored regime as a commonwealth, a state
where no one person (presumably the monarch) and no portion of men (the aristocracy)
“overbalance” the people. That is, it is the demos which owns the most property, just as
the middle class did in Aristotle’s ideal regime. Yet since there is always a “natural
aristocracy” of betters, who have greater powers of reasoning and who individually
possess more property than the average person he envisions an institutional place for
them as well. The way he accomplishes this departs significantly from the letter and
spirit of Aristotle and moves toward something recognizably coequal.
Harrington famously uses a cake cutting metaphor to describe what he aimed to
do with his bicameral legislature. How does one distribute cake fairly among two
people? Allow one to cut the cake and the other to decide which slice she will eat. Yet
it would not do to simply allow just anyone to cut and anyone to choose. To
Harrington, one order “has the natural right of dividing, and the other of choosing”
(195). Those who “divide”—or in the case of legislation discuss it and write it up—
should be the aristocracy in a Senate. They have exclusive right to debate and propose
legislation because they form “the wisdom of the commonwealth” (197).
These aristocrats would not choose wisely without a democratic branch. Thus
there is a Prerogative Tribe, which has the ability to agree or disagree to the legislation
passed by the Senate. The purpose of this second institution is to represent the broad
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array of interests in the community. Thus wisdom forms the law and interests approve
of the law. As Charles Blitzer writes, for Harrington “legislation requires two distinct
elements, wisdom in debate and the representation of interests in arriving at a final
decision” (244). There is an executive authority, who is charged with making sure that
the laws are followed. Thus “commonwealths in general be governments of senate
proposing, the people resolving, and the magistracy executing” (204).
Harrington was an eccentric, to say the least. One must wonder why he
believed he would not run afoul of either the Lord Protector or a restored monarch,
which indeed he did in presenting his ideal republic to the world. His narrative is a
thinly veiled chronicle of the people and events which the politically literate were all
familiar with in his day. He was bound to offend. This despite using pseudonyms, like
Olphaus Megalator for Oliver Cromwell and Verulamius for Francis Bacon. His
offenses to the thin-skinned political leaders of the day notwithstanding, the most
curious matter from a political theory perspective in Harrington is that he forbids the
lower chamber to debate or even discuss the legislation sent to it—on penalty of death.
So at odds with our modern democratic presumptions that dialogue can make for
greater understanding, this stance presumed that legislators knew their interests, and
any influence outside this frame of reference could only be problematic.
Yet in Harrington we have satisfied postulates #4 and #5 and are on the verge of
also satisfying postulates #3 through #6. There is a mixed republic, with a bicameral
legislature. The upper chamber of the legislature represents the aristocracy and the
lower chamber represents the populace. Each institution can check the other by itself
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definitively. There is an executive, so the government has developed the necessary
three parts for Adams’s triple equipoise. The only part missing from the equation is a
legislative role for the executive.
Montesquieu and De Lolme
John Locke emphasized the separation of legislative and executive power. This
had been a theme in Harrington’s Commonwealth, though the executive wound up
getting relatively little attention compared to the meticulous plan for the legislative
branch’s proper structure. By contrast Locke thought and wrote carefully about
executive power, helping to flesh out what had been either a blind spot in Harrington’s
thinking or a deliberate omission. Locke suggested that mature societies would find the
division of legislative and executive power to be useful (chapter 12). Problems could
easily result if the same body made the law and executed it. “It may be too great a
temptation to human frailty,” Locke explained, “apt to grasp at power, for the same
persons who have the power of making laws, to have also in their hands the power to
execute them” (76). The temptation for legislators not to consider themselves bound by
law was great. If one person could both make and execute the law this problem would
be particularly acute. A separation of legislative and executive institutions would
preserve the rule of law, and this was true even though Locke had an expansive vision
of prerogative. The strict institutional distinction that he emphasized allowed him to
claim this.
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Locke was not a favored source of ideas for Adams and the other founding
coequalists, however. The focus of the Two Treatises of Government had been to
undermine the authority of King James II and, ultimately, to justify revolution against
him. The coequalists’ primary interest was setting up a stable republic. Locke appealed
to them less than other thinkers because of his relatively cavalier attitude about political
stability. However, from a coequalists’ perspective Locke was also too casual about
institutions. Saying that “the community may make compounded and mixed forms of
government, as they think good,” suggested that the choice of a simpler regime could
be just fine (chapter 10, 68). Believing that it was up to the social contract in each nation
to form whatever institutions it wished, ran afoul of the standard-issue constitutional
form on offer from the coequalists. Locke did not preach the gospel of bicameral
legislatures; he had not noted the inevitable tendency of societies to divide into two
estates which needed to be represented in distinct chambers; and he only hinted at
executives playing a part in the legislative process by suggesting that some member or
members of the legislative branch could be designated as the executive.
It was Baron de Montesquieu who moved the discussion of the mixed republic
forward, nearly to completion. Montesquieu preserved Locke’s distinction between
legislative and executive power. However, he added three critical elements, the first
two of which take us very close to completing the list of Adams’s postulates. Ironically
the third element contributed to the ultimate demise of the founders’ version of
coequality by suggesting an alternative, the current version of coequality.
Montesquieu’s first addition was to restore the bicameral, estates-based legislature. His
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second addition was that the executive had to be given an unqualified veto to protect
his office from being overwhelmed by the legislature.
Montesquieu’s third innovation was that the judiciary was to be considered an
independent branch of government too. Tyranny could easily be visited on citizens if
the entity responsible for rounding up suspects was also able to prosecute them. Given
this third innovation one can easily imagine how the current idea of coequality evolved.
The founders, wary of government, keen on checks and balances, and steeped in
Montesquieu’s ideas, set up a relatively powerful and independent federal judiciary.
Originally this was “the least dangerous branch,” a reactive institution without the
power of purse or sword. Hamilton was surely prompted to call the judiciary this by
his reading Montesquieu. Properly constructed, Montesquieu called the judicial power
“null” because it relied on ad hoc juries rather than permanent magistrates (Part 2, Book
11, ch. 6, 160). During the centuries-long process of “judicialization” in America—as the
federal judiciary grew in size, in power, and in scope of reach—it eventually made
sense to some to tout the judiciary as a third coequal branch of government, along with
the presidency (which had grown in power), and the Congress. Americans thus kept
the coequality label and applied it to a new vision, which encompassed all that
government did and which referred to the total quantity of power possessed by each
branch.
But this is getting ahead of the matter at hand. Montesquieu borrowed the
estates-based bicameral legislature, putting it into a form that was more plausible and
practical than Harrington’s version. Part of the reason Montesquieu’s version was more
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plausible to readers was that it was a replica of how the English government worked,
with both chambers of the legislature and an executive equally capable of stopping
something from being enacted.
The trajectory of English politics over the previous centuries seemed to indicate
that legislative power was on the rise. To stem this trend at a point of equilibrium
required an executive veto according to Montesquieu. He cautioned that “if the
executive power does not have the right to check the enterprises of the legislative body,
the latter will be despotic, for it will wipe out all the other powers, since it will be able
to give to itself all the power it can imagine” (162). This was not the mutual checking of
three institutions that we often envision today, where there are “separated institutions
sharing powers. The executive was to wield executive power unalloyed.
The idea that legislatures threaten to encroach on all other aspects of government
is one of the lost presumptions of the federalists. It helps us to make sense of Madison’s
position in Federalist #51: “in republican government the legislative authority,
necessarily, predominates,” he noted (Hamilton et al., Cooke, ed., 350). Logically,
therefore, legislative power in particular has to be divided up and controlled. It is no
coincidence that it took until Publius turned his attention to Congress that the idea of
checks and balances took center stage.
The way Montesquieu speaks of the veto, it is not a creative force but a defensive
one. The executive in Montesquieu’s vision does not have the power of enacting,
because properly defined, enacting is “the right to order by oneself, or to correct what
has been ordered by another.” Only the legislature had the power of enactment and in
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his view the two chambers should share equally in that power. Executives have no such
ability, merely having the “faculty of vetoing” (161).
Though it seems like Montesquieu is heaping praise on England by essentially
describing their institutional arrangements as desirable in Part 2, Book 11, this portion
of The Spirit of the Laws rarely mentions England explicitly. It instead singles out the
practices of other states for praise or blame. So while it seems like Montesquieu is on
the verge of postulate #8 (the English government is a good model), at the end he seems
to hedge. Is this institutional arrangement actually productive of the liberty that he
suggests it could be? Montesquieu demurs, saying that “it is not for me to examine
whether at present the English enjoy this liberty or not. It suffices for me to say that it is
established in their laws, and I seek no further” (166). While the Spirit of the Laws was
taken to be a robust defense of the English mixed constitution, it is more accurate to say
that Montesquieu cautiously endorses English-style institutional arrangements, while
seeming to suggest that English practices may depart significantly from the ideal.
It was left to a disciple of Montesquieu, Jean-Louis De Lolme, to offer a full
throated defense of the constitution of England. Adams was well into his adulthood at
the time De Lolme’s Constitution of England was published. Yet as one of the rare
Americans who devoured every significant title of political philosophy which emerged,
Adams knew the book almost immediately on publication. In De Lolme we move from
a tentative version of the mixed regime centered around institutional defense toward
one that endorses all eight postulates robustly, including postulates #7 and #8.
According to De Lolme (and Adams) a triple equipoise of institutions does, in fact,
26
produce better legislation than that produced in other regimes and England is a positive
example for the world.
Consider the following passage from The Constitution of England:
As each of the two Houses has a negative on the propositions made by the
other, and there is, consequently, no danger of their encroaching on each
other’s rights, or on those of the king, who has likewise his negative upon
them both, any question judged by them conducive to the public good,
without exception, may be made the subject of their respective
deliberations (57).
No longer was the primary business of government the constitutional protection of the
government, though that was accomplished. Nor was it even the preservation of
freedom, though that was on offer as well. Rather, De Lolme invites readers to think of
mixed government as a positive force. Its deliberations are directed at the public good.
While The Constitution of England offers a lengthy (and even tedious) explanation
of the political development of England, when “modern” England is treated, all the
hallmarks of the Adams’ mindset are on display. Human nature is problematically self
interested. Simple regimes do not check that self-interest. Only a mixed regime with a
bicameral legislature and an independent executive, who has an exclusive power to
implement the law and a definitive veto power can move politics effectively toward a
fruitful pursuit of the common good. One legislative chamber should represent the
public at large; the other should represent the aristocracy. With each of these three
entities able to stop legislation the attention of the polity as a whole turns to matters of
mutual benefit. Thus King and Parliament “never go, in regard to each other, beyond
the terms of decency, or even of that general good understanding which ought to
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prevail among them” (334). And the Constitution of England, therefore, serves as a
model for the rest of the world.
Conclusion
The idea of coequality, like the Holy Grail of political balance, has attracted
political thinkers for a very long time. An early version of coequality was championed
by a number of well-placed individuals during the founding, including Alexander
Hamilton and John Adams, who were acquainted with classical and modern political
philosophy. Their views on politics—and particularly their ideas about the proper
construction of institutions—can clearly be traced back to some of the most prominent
political theorists of all time, including Aristotle, Polybius, Harrington, and
Montesquieu. Adams was telling the truth, from his perspective, when wrote Thomas
Jefferson that he had “said nothing new on the Subject of Government” (Cappon, 357).
Suspicions about human nature and the sociological observation that societies
always divide into rich and poor led logically to the vision of a three institution
legislative system, layered on top of the separation of powers. Lest it run amok and one
of the estates dominate, the legislature was split in two and segregated, one chamber
given over to the wealthy and the other to the general citizenry. A president floated
above the fray, adding his own independent and considered judgment to what was on
offer from the legislature. And thus, because each of three entities could prevent
legislation from passing, all were restrained to think primarily in terms of the public
good. Modern England had effected this style of regime. It could be replicated and
perfected in the Americas. Yet despite having influence on the shape of the new
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Constitution (the president was substantially dealt in to the legislative process) none of
these founding coequalists was under the impression that their ideal had been reached.
So Mason and Gerry fought against the Constitution, hoping to add more
representatives to the House; Hamilton attempted to warp the Constitution in favor of
executive power; and Adams kvetched to his dying day that the presidency was not
powerful enough to defend the office against legislative encroachment.
American political thought and the American Constitution is aligned, in some
way, with the venerable mixed constitution tradition of political theory. Those
interested in discerning the reasons behind the design of the American system
government should be aware of the intellectual debt owed to Aristotle and Polybius
and Montesquieu and De Lolme. At the same time, we are perpetually in danger of
considering this connection to be too robust, because we assume that the founding took
on a more rationalist cast than was actually the case. In general, the founders took the
ideas of these thinkers seriously enough to form a system of checks and balances. But
they also sacrificed the ideals of Montesquieu and De Lolme for practical
considerations. Instead of purposely representing a natural aristocracy in the Senate,
they opted to satisfy state interests instead, for instance (Wirls and Wirls).
The literal shape of the Constitution certainly shows a greater debt to
Montesquieu than it does to Machiavelli. Yet the intrusion of interests into the
formation of the system suggests Machiavelli’s presence is lurking too. The current
form of coequality being bandied about does as well. Forged in a time of crisis for the
presidency, as a political expedient to fend off Congressional investigation during
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Watergate (and to prevent a veto-proof majority in its aftermath), modern coequality
was given birth by political maneuvering rather than rational institutional engineering.
Richard Nixon is our Charles I, issuing the equivalent of His Majesty’s Answer.
Subsequent presidents have routinely touted their “coequal” status in the American
system, despite the dubious nature of that claim. These later presidents may not be like
Charles I, but they show that the American tradition of “coequality” is more about
posturing than philosophizing and more about willful assertion than disinterested
consideration.
List of Works Consulted
Adams, Abigail, John Adams and Thomas Jefferson. 1987. The Adams-Jefferson
Letters, Lester J. Cappon, ed. Chapel Hill: University of North Carolina Press.
Adams, John. 1961. Diary and Autobiography of John Adams, 4 vols. Lyman H.
Butterfield, ed. Cambridge, MA: Harvard University Press.
Adams, John. 2000. The Political Writings of John Adams. Carey, George W., ed.
Washington, DC: Regnery Publishing.
Adams, John. 1850-56. The Works of John Adams, 10 volumes, Charles Francis Adams,
ed. Boston: Little, Brown.
Aristotle. Politics, Carnes Lord, tr. Chicago: University of Chicago Press.
De Lolme, Jean Louis. 1853. The Constitution of England. London: Henry G. Bohn.
Ebenstein, William and Alan Ebenstein. 2000. Great Political Thinkers: Plato to the
Present, 6th edition. Fort Worth, TX: Harcourt College Publishers.
Hamilton, Alexander, John Jay and James Madison. 1961. The Federalist, Jacob E.
Cooke, ed. Middletown, CT: Wesleyan University Press.
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Harrington, James. 1968. Commonwealth of Oceana in Henry Marley, ed., Ideal
Commonwealths. Port Washington, NY: Kennikat Press.
Howe, John R., Jr. 1966. The Changing Political Thought of John Adams. Princeton:
Princeton University Press.
Jones, Charles O. 1999. Separate but Equal Branches: Congress and the Presidency, 2nd
edition. New York: Chatham House Publishers.
Locke, John. 1986. The Second Treatise on Civil Government. Buffalo: Prometheus.
Montesquieu, (Charles de Secondat). 1989. The Spirit of the Laws. Cambridge:
Cambridge University Press.
Plato. The Republic, Alan Bloom, tr. Chicago: University of Chicago Press.
Pocock, J. G. A. 1975. The Machiavellian Moment: Florentine Political Thought and the
Atlantic Republican Tradition. Princeton: Princeton University Press.
Rossiter, Clinton. “The Legacy of John Adams.” Yale Law Review, 46, no. 4 (1957):
528-50.
Siemers, David J. 2009. Presidents and Political Thought. Columbia: University of
Missouri Press.
Siemers, David J. and Paul T. Beach. “Presidential Coequality: The Evolution of a
Concept,” forthcoming in Congress & the Presidency.
Thompson, C. Bradley. 1998. John Adams and the Spirit of Liberty. Lawrence, KS:
University Press of Kansas.
Wirls, Daniel and Stephen Wirls. 2004. The Invention of the United States Senate.
Baltimore: The Johns Hopkins University Press.
Wood, Gordon S. 1969. The Creation of the American Republic, 1776-1789. Cambridge:
Harvard University Press.