Skip to main content Accessibility help
×
Home
Hostname: page-component-684899dbb8-mhx7p Total loading time: 0.347 Render date: 2022-05-25T18:48:43.901Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

2 - Checks, balances and boundaries: the separation of powers in the constitutional debate of 1787

Published online by Cambridge University Press:  05 February 2010

Biancamaria Fontana
Affiliation:
Université de Lausanne, Switzerland
Get access

Summary

At times the constitutional debate of 1787 came close to an exegesis of Montesquieu's theories. Madison indeed engaged in a brief commentary of The Spirit of the Laws to refute the claim that the constitution violated the principle of the separation of powers. ‘The oracle who is always consulted and cited on this subject’, Madison wrote, ‘is the celebrated Montesquieu … Let us endeavor in the first place to ascertain his meaning on this point.’ The slightly sarcastic reference to the ‘oracle’ on the question betrayed a certain impatience. Madison nevertheless considered that the invocation of the famous name by his opponents carried sufficient weight with the public to warrant a documented rebuttal. In a subsequent Federalist Paper Hamilton reiterated that the constitution did not transgress the maxim understood in its ‘true meaning’. The Anti-Federalists, for their part, invoked repeatedly Montesquieu's axiom. Many of their pamphlets quoted The Spirit of the Laws verbatim: ‘when the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner’.

Thus there is no doubt that the ratification of the constitution generated an argument over the separation of powers. Yet it seems difficult to define precisely what was in contention on this matter. Numerous studies have analysed the Federalist conception of the separation of powers and of checks and balances in isolation. The main difficulty, however, is to characterise exactly the Anti-Federalist position. To be sure, the Anti-Federalists were not a homogeneous group, nor did they have a unified leadership.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 1994

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
2
Cited by

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×