Because Montesquieu concluded Book 11 by invoking the comprehensive meaning of police or politeia it were well to pause in this analysis to consider just what the making of a politeia might look like in Montesquieu's theory. James Madison famously argued that Montesquieu could not be taken as a guide in shaping a republic, inasmuch as he had never created or, for that matter, experienced life under a republic.34 Moreover, in Federalist 47 Madison deflected attention from Montesquieu's arguments in EL 11.6 to consult the model itself, England. One inquires, accordingly, whether Montesquieu really does suffice as theory of constitution making, providing a comprehensive account of a way of life. In answer to that inquiry, we will scan briefly the experience in the United States, and then turn to the books (12–19) of Spirit of the Laws that lay out the terms responding to the question of whether constitution making is possible.

Returning to the separation of powers, therefore, we see a context in which it can acquire a functional meaning. None serves the purpose better than the implementation of a regime of separation of powers and balances and checks in the United States. Although the classical statement of the meaning and operation of those principles is found in The Federalist Papers (1788), certain aspects of the initiation of the government, and especially George Washington's understanding, serve best to establish the context we need.

The U.S. Constitution mandates that the executive branch will seek the “advice and consent” of the Senate to treaties with foreign powers. Thus, Washington as president once determined to “advise and consult” with the Senate on a treaty matter involving negotiations with Indian tribes. Accompanied by his secretary of war, Henry Knox, the president presented himself before the Senate while the clerk read out the main points that concerned Washington—thus seeking a point-by-point constitutional “advice and consent.” Following this dramatic entrance, Washington was ushered out of the chamber and cooled his heels outside while what was later to become known as the “world's greatest deliberative body” debated how to proceed.

Realizing he had made a mistake that could limit the power and authority of future presidents, the president turned on his heels and left the building—never to return personally before the Senate for such purposes.