sa s



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C. DeMuth,

As Far as Republican Principles Will Admit
Essays by

series editor


Martin Diamond
William A. Schambra

Selected Essays: Second Edition Edward C. Banfield

Edited by

Essays by Martin Diamond

Robert A. Goldwin

Writings of Herbert

J. Storing


Essays by James Q. Wilson

The AEI Press Publisher for the American Enterprise Institute



Support from the Earhart Foundation and from the Institute for Educational Affairs is gratefully acknowledged. The editor also wishes to thank Mrs. Ann Stuart Anderson valuable assistance. Distributed by arrangement National Book Network 4720 Boston Way Lanham, MD 20706 with 3 Henrietta Street London WC2E 8LU England Data for her








William A. Schambra



Library of Congress Cataloging-in-Publication

Diamond, Martin, 1919As far as republican principles will admit: essays / by Martin Diamond; edited by William A. Schambra. p. cm.-(AEI studies; 527) Includes index. ISBN 0-8447-3784-4 1. Political Science-United States-History. I. Schambra, William A. II. Series. JA84. U5D49 1991 320.5'0973-dc20 91-18417 CIP AEI Studies 527 © 1992 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views' of the staff, advisory panels, officers, or trustees of AEI. The AEI Press Publisher for the American Enterprise Institute 1150 17th Street, N.W., Washington, D.C. 20036



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4 The Separation

of Powers and the Mixed Regime

Diamond insisted that an accurate understanding of the founders' intentions required a firm grasp of the distinction between their scheme of separation of powers and the traditional idea of the mixed regime. In this lecture to the Woodrow Wilson Center (published posthumously in a 1978 issue ofPublius: The Journal of Federalism), Diamond explores that distinction and points out that our version of the separation of powers testifies both to the profound modernity and the full republicanism of our regime. The separation of powers is a modern invention and its modernity is decisive to its understanding. The American founders understood that modernity well. Hamilton, for example, lists the separation of powers as one of those principles "which were either not known at all, or imperfectly known to the ancients."! More precisely, the separation of powers was conceived and elaborated in the century from Locke to Montesquieu to the American founding. At the beginning, however, it emerges in ways that are confusingly entangled with the traditional idea of the mixed regime. Even in Montesquieu the disentanglement is not complete. But in the American founding, the separation of powers receives its distinct and full formulation and embodiment; this perplexing idea is thus especially visible in the moment of our founding. Accor . tion ourselves, as it were, within the founding is to secure a vantage point or 100 n bac ward ~ongm of t e separation of powers, orwar to its practical ~ to!)" and comprehensively at its nature. . . It should immediately be notiCett that, in thus emphasizing the

modernity of the separation of powers, I am treating it as the invention of what many rightly call "the new science of politics." But this, of course, is to go against much of the literature on the subject. Most commentators trace the separation of powers back to institutions and ideas having their roots in medievalism or, typically, back to the ancient Greeks. For example, some find in Aristotle's famous account (in Book IV of the Politics) of the "parts" or "pieces" of political rule, others in his idea of the mixed regime or polity, the more or less direct forebears of the separation of powers. In contrast, for reasons that I hope will become clear and will seem important, I argue the radical novelty of the separation of power. The notion that it somehow is descended from the A . . e rests artl, I think, on e 0 owmg ar ment: the se aration of powers is a species of the enus lV1Slon of ower; the mixe regune was likewise a speoes of that genus; an ,therefore, the former descends from the latter. The same commentators will also say that federalism is such a species, a~d bicameralism likewise. Everything always turns out to be a species of that genus and everything is always traced back to the Greeks. !r;.a very vagu~ sense thjs is all guite true, but too vague to be useful ill the present mstance. Indeed, all political arrangements, precisely in being political, involve some sort of division or distribution of power according to some principle upon which the community is based. (This includes all except the imagined philosopher-king and pure tyrannies or despotisms; but, then, no one seriously calls these political systems, which makes my point.) Now just as it is usually foolish to have a class with no members, it is also foolish to have a class or genus of which everything is a member. By lumping together separation of powers and the traditional mixed regime as species of such a single genus we deceive ourselves because of superficial formal similarities and miss the importance of the deep and distinguishing differences.

Let us stand with the founders and, from their perspective, look back at that long tradition of the mixed regime; we will then best be able to see if the separation of powers, for which the founders opted and under which we still live, is soi:nehow continuous with the old mixed regime or must be understood as something radically new and different. As a matter of fact, this need to compare the separation of powers with the mixed regime and decide about their relationship is so obvious that nearly all commentators have to tackle the problem. If 59





you read this literature you will see that this is so and you will notice that until quite recently most commentators (Stanley Pargellis and Richard Hofstadter, for example) lumped the two closely together; but now some (like Gwyn, Vile, and Wood) begin to emphasize the distinction. I find myself making the distinction perhaps most radically. What then was this idea of the mixed regime as it was so vividly available to the Americans of 1787, such as John Adams (who never succeeded in fully disentangling the old mixed regime from the separation of powers in his mind)? Th~lies in the word mixed. It was a regime in which rule did not belong to any smgle element in the commumty, but rather was shared or mixed between severaI e1e:;--ments. In Aristotle, the mixture was of oligarchs and democra:rs;--a.--. . mixture of the few rich and the many poor. (W!!may ignore for present purposes the influential Polybian polity which mixed three elements, monarchy, aristocracy, and democracy.) It was understood and accepted that there was an unbridgeable gulf between the interests and ideas and what we now so quaintly call the "life styles" of these two social elements or classes, to use the modern word. The fundamental presupposition was that society was naturally a compound of such radically disparate human elements that the political order had to reflect their fundamental diversity. Thus, each fundamental stratum had to have a share in ruling the political community, so as to protect each from the oppression of the other and to bring into the political community the partial idea of justice which each possessed. But this sharing or mixing of various classes in governing the regime did not at all involve the division of power, as seems to be assumed by those who lump together the separation of powers and the mixed regime. There was no division at all, or at least not a principled division, of the governing power in the mixed regime. Each class, the rich few and many poor, was given, as it were, the whole of the governing power. For example, in the English mixed regime of earlier centuries there was no principled division of governing functions between the House of Lords and the House of Commons. (Functional diversity as between elements of a mixed regime seems to have been only a matter of historical accident; in any event, no systematic rationale was ever offered for such diversity.) Each dealt with the whole of the governmental business, but each represented a distinctive element in the society. In short the governin s twinned, so to ~peak, rather than divi . By virtue of the necessity that the community could act only when the two agree, each had an absolute veto over the other.? This

,was a security against the oppression of one class by the other, and it also insured that the distinctive view of justice and common good held respectively by, say, the Lords and Commons would have to be harmonized in the actions finally taken by the government. The mixed regime was therefore defended, partly as a barrier against oppression by one class of another-not, be it noted, as a protection of the liberties of individuals-and it was further defended, even more importantly, on the ground that by bringing together two partial co . s of 'ustice, statesmanshl could hope to achieve a complete justice by harmonizing t ese opposing conceptions. Thus. in the mixed regime rival claims regarding 'ustice . . structure of the s ste 0t e built in rovicli.rt olitics with an elevation and drama that still is attractive, to most of us when we read the history of such regimes. But these rival claims also rendered these regimes vuIrierable to desperate struggle, because politics in them could so easily reach to grandly fatal matters. This sketch presents us with the idea of the mixed regime, which was for two thousand years the traditional prescription of philosophic politics, the practical proposal of the most thoughtful men. Now compare the separation of powers with that. Do not profound differences immediately leap to sight? The mixed regime combines undivided power with a people divided into the few and the many; the separation of powers combines divided governmental power with an undi-vi e eop e, an un IVl e emocra c e ,Moreover, es on 0 powers is based on a principle according to which the power of government should be divided, namely, ac,cording to its functions or powers: legislative, executive, and judicial. :And the separation of powers further rests on the idea that these sepi arate functions should be assigned to separate governmental bodies or branches. The great good which this functional parceling out of po,litical power proilllses, as we shall see, is not justice in the anCIent but liberty in a modern sense. ut first let us consider another massive difference which strikes the eye between the separation of powers and the ancient idea of political rule. Aristotle defined political rule as having three parts or aspects, namely, the deliberative, that of the magistrates, and that of judging. We may omit from consideration, although it has interesting possibilities, the question of judging, which seems somewhat the same in both schemes. What is most strikingly different is the transformation of Aristotle's deliberative element into Locke's and our legislative power. But also significant is the transformation of Aristotle's magistrates, a grand title deriving from the word for master, into an executive whose title (however imperial he mayor may not recently








have become) is so humble as to have originally meant only him who ut the laws. ~ both these transformations involve a redEf.. tion. Del' a on for Aristotle includes lawmaking, but includes also ~e grand one-time-only strategic and policy and moral decisions; and Aristotle's magistrates were more unequivocally like rulers and wide-ranging statesmen than was the original idea of the executive.'


II The separation of powers thus rests upon a reduction of the status and range of the political and of the art of government. Whence came this reduction? For this I must turn to the profound and compelling account given us by the late Professor Leo Strauss of the rejection in the sixteenth through eighteenth centuries by modern political philosophy of the long classical tradition. The ancients saw man as reaching nearly to the divjne~gs fr~ p.£§sibilities of human natme_ While, to say llie least, the ancientshad no illusions about the capacity of most men, they thought that every resource of the political art should be employed to draw out and up the potential of the exceptional few. The classical effort to nurture ~ the human excellence of these few explains the extraordinarily difficult and "idealistic" demands that the classical teaching placed before humanity, demands that modern thought came to find ineffectual, excessive, and unnecessary. It helps explain ancient laws that aimed primarily at moral excellence; ancient censorship of art and speech that threatened that excellence; the premium placed on education to mold character, on civic piety, on honor and reputation; the restraints on private economic conduct and commerce; and the insistence on keeping the political community small so as to provide the milieu in which such "social controls" would be feasible. These strenuous measures and a demanding political art were needed if men were to be raised so high against the powerfuldownward pulls of the baser and easier pleasures which exert their charms on all men. But the "new science of politics" charged that all this had been ineffective and excessive-that is, "utopian." Despite two millennia of such elevated teachings, man's estate had still not been relieved; greed and vainglory ruled under the guise of virtue or piety, and the religious tyrannies and wars of the sixteenth and seventeenth centuries had climaxed two millennia of the failure-of the traditional political science. And what is more, the whole rigamarole had been unnecessary. It was in fact possible, the new science argued, to achieve not the delusive heights at which the ancients aimed but solid human decencies

by far more efficacious and at the same time far less excessive means. An~Dt and medieval thought and praetiee 'Nere said--to heWS failed disastrously by clinging to Hh15ions regarding how men ought to be. Instead, the new science would take man as he actually is, would acj cept as primary in his nature the self-interestedness and passion dis-1b. 1V1'CT played by all men everywhere and, precisely on that basis, would ~'1~ work out decent political solutions. This meant, as against the ancient IA~~-;;Y-and medieval exhortation and compulsion of man to virtue, a 10wer-1Of;. ~~ ing of the aims and expectations of politics. And it meant the achieve- ~ ~~.r.::h ment of these more modest aims, as we sJ.i.aIrsee, by a shrewd bul perhaps somewhat coarse reliance u on those natural human assions an ill eres s. ~~ .... 7:'/~ Thii%llll of this new science of politics became a realistic search for the solid goods which this earth had to offer-the commodious 7~7' self-preservation of each and the individual liberty which alone could ~ assure (as far as it can be assured) that self-preservation. Whatever is . left by this view to what men may seek in their private capacities, it drastically narrowed or reduced the scope of government. One has only to remember the Declaration of Independence to see that' this commodious life and this individual liberty came to be viewed as the only legitimate objects of government. Indeed, the very idea of government-as distin shed from the old, more encompassing idea of a polit or re ime-was invente in response 0 scope of the political. T at is, government or e s a e wa Tshed trom SOCIetY ang the private. Arid the task of this now liillite government was to protect the private pursuit of happinesswhich, it could well be hoped, would include not only a concern for self-preservation but also for nobler private interests in philosophy, science, religion, art, friendship, and the like. But still these matters were now removed as far as possible from the purview of the political. There would no longer have to be decisions, policies, and judgments about these matters, profoundly difficult matters, and especially matters which come in unique individual packages, as onetime-only events needing prudential decision and largely not amenable to general laws. Under the new limiting dispensation, political problems did beco . niform ros ecfive treatment tbatis to say. ~ law. This narrowing of the politic ~ how the Aristotelian ~liberative element could be reduced to the legislative function and how also the Aristotelian magistracy could be reduced to an executive. It was therefore the modern reduction of the political that made the separation of powers possible; it could not have been proposed earlier. Now this reduction also had a great effect on the claims of de-




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mocracy. To consider this effect we will turn our attention to the link, alluded to above, between democracy and the separation of powers. The great criticism of democracy had always been that the many were inadequate to the demands of the political art. But this means that when the political art is broadly conceived, as it so long had been, the claims of the aristocratic few are strengthened. When the political art is narrowed and reduced, then so too is the saliency of the inadequacy of the many; there is less to be inadequate about. The history of modern democracy is a history of the effort to balance the equation between the demands of the political and the capacity of the many. The equation can be balanced either by raising the popular capacity or by reducing the difficulty of the political. Much democratic hopefulness rested on the former, as for example faIth ill education as a way to elevate the popular capacity. But the irresistible rise of modern democracy had its roots in the modern reduction, in all its variety, of the scope and difficulty and jurisdiction of the political. (The Marxist "withering away of the state," for example, is a kind of reduction to absurdity of this process.)

The separation of powers, that is, the idea of government as a trio of branches, legislative, executive, and judicial, I have argued, became possible only with this democracy-favoring separation of state and society and consequent reduction of the political. But democracy is still more closely linked with the separation of powersi it is the ground upon which the separation rests in at least two further direct ways. First, democracy is the precondition for the successful operation or working of the separation of powers. Al:td second, the separation of powers is intelligible only jf concejved as aiming at the amelioration ~ ~i that is, the separation has as its purpose the improvement of democracy in particular and not of government in general. It is because of this link between democracy and the separation of powers that it is necessary to emphasize how sharp is the distinction between the mixed regime and the separation of powers. The mixed regime idea presupposes politics as a bjgh and all-embnicing art, an art aimed at comprehensive justice and hence requiring high, ultimately aristocratic deliberation and sfatesIIlafls1'll . Ihe separation of powers alms c iefly at the liberty of eac ,an therefore can try to limit politics and government to general and equal laws and their fair execution. The mixed regime presupposes a mixed society, composed of qualitatively differentiated regime elements; the separation of

powers presupposes an individually heterogeneous democracy. The mixed regime aims at harmonizing various claims regarding justice and excellence and hence seeks to perfect what is imperfect in both democracy and oligarchy. But the separation of powers is addressed only to the faults and excellences of democracy. (Regarding this, see Hamilton in Federalist No.9 on what the improved science of pohtics has made possible.) When thus considered, and especially taking ac'"Count of the ends of each, the mixed regime and separation of powers are about as unlike and unrelated as any two political arrangements can be expected to be. The direct links with democracy, I have asserted, are these: the separation of powers needs democracy if it is to work; and democracy needs for its own good the shaping and constraining supplied by the separation of powers-that is to say, the end of the separation is the amelioration of democracy. Now to see how democracy is required : for the separation of powers to work, we must understand how that work is done. To state it simply: the three branches are, as it were, to collude in all good measures. Contrarily, the branches are to collide wnen the laws are improper and the execution and judging incompetent and unfair. Each branch is to bring to its peculiar function its proper performance; when this is the case, all three branches are expected to collaborate and form a coherent power of government. Contrarily, when any branch abuses its power or seriously misperforms its function, the other branches are expected somehow to check the evil. But just how is this allegedly merely mechanical arrangement able to work in this fashion, to produce conflict to stay evil, but to produce unity in effectuating decent measures? Perhaps we can back into the answer by considering conditions in society which would absolutely prevent the separation of powers from this near miraculous labor expected of it. If there is any power61l distinct. permanent jnterest jn societt, adverre- to the rights and interests of all the others, and if such an interest were to ~ain control of all the branches of government. then the Sfuaratiop of POW<il1:S wO'll~ B@t:'i111dered utterly useless. Now this perhaps apparently obvious statement is rendered significant because, as it happens, we know something about the conditions under which something like that is likely to happen. For example, if a single ideological and disciplined political party came to prevail, what good would the separation of powers be? The disciplined ideologues would not act as the separation of powers requires, namely, as crea..s.,.l. _Jr tures of Congress, the White House, and the courts, that is, behaving k1 I above all with regard to the peculiar interests of their respective of- -rftt '11 fices and duties; rather, despite the formal separation of powers,





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these disciplined ideologues would function as a unified force, thereby rendering the separation nugatory. Thus we can say with certainty that the separation of powers requires that we avoid the emer:+f-.,...,gence triumph of such a party system. This helps to explain wQy and '171f'/a r nce for such arties always oes hand in hand with a hostilft 0 e se aration . vl)~,'q;? uite similarly, the separation of powers could not work in any 1"&\ society with dominant familial interests. If, say, fifteenth-century aristocratic England had had the separation of powers, nothing would have prevented a Lancastrian legislature from conniving with a Lancastrian kirig and judges against the interests of the rival Yorkists, or vice versa. What the formal constitution would set apart, such a familial interest would reunite for all practical purposes. The same would be true regarding profound religious divisions or in a society with fixed oligarchical classes. Coreligionists and fellow oligarchs would cooperate with each other against their respective enemies regardless of any formal separation of powers.

Does all this then not show us what kind of society the separation of powers presupposes? One very much. like the kind envisaged by Madison in Federalist No. lO-a heterogeneous, modem, large-scale representative democracy. It simply won't work elsewhere; the separation of powers needs such a democracy. But now what of our second question: why does democracy need the separation of powers? That is, how precisely does it ameliorate democracy? The answer would require a long analysis of the nature of democracy and its peculiar strengths and weaknesses. Space now only allows me some assertions. The American founders, like all thoughtful men before them, took for granted that democracy had certain grave defects. Indeed, as Hamilton says in Federalist No.9, the republican form of government would have remained indefensible had it not been for the recent great improvement in the science of politics. But what precisely were democracy's defects? The familiar answer is that a factious democracy is prone to de~rqt: It IS unquestionably true that the founders ,..took that vie7ndthat the separation of powers was clearly aimed at guarding against the loss of liberty by its system of separate and also checking branches. But it must also be added that the American founders believed democrac rone to a second and equall ievoiffi to ineptitu e, inconstancy, incompe. to the re utr 66

ernment (which itself was, of course, also regarded as indispensable to liberty). The separation of powers was expected Lo temedy this de- feet or democracy as well. We must always bear in mind, then, that the separation of powers is intended to help democracy achieve not only free but also effective government; it has to not maximize either freedom or strength, but work to optimize them. To explain how the separation serves these two meliorative ends would require a second lecture. It suffices here only that I bring us up to the crucial writing, which would be Federalist No. 51. The separation of powers, Madison writes, depends for its efficacy on "giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others." The constitutional means are the famous "checking" devices of which the presidential veto is perhaps the best example. By that means, the president is able temporarily to void and perhaps permanently moderate oppressive or foolish legislation. But it is more difficult to see wh the executive and the 'udiciar will have" ersonal motives" to resist an erring legislature. The answer draws us close to the eart 0 the new science of politics employed by our founders. Madison expects that legislators, presidents, and judges will want to do a good job out of virtuous public-spirited motives. But he knew that public-spiritedness, and virtue in general, are not available in sufficient supply to serve the needs of democracy. Therefore, lower motives, that is, personal motives (which he contrasts with "better moL ~ ceJli tives") must somehow also be made to serve. "t\rnbition must made to counteract ambition. The interest of the man must be con.f;.:t (ill) nected with the constitutional n@fs of the pla~. II Because of the sep'-,;J.'!l aration of powers, presidents and judges will defend their office~1AIV" against the legislature when necessary, because their pride, love of power or fame, even their acquisitiveness will lead them to identify their self-interest with the integrity of their offices. TI:@is because improper legislation, that is, oppressive or very foolish legislation, is * likely to reqUIre servile execution and servile JudgIng; and servile executives and judges enjoy no dignity. DO power, no fame. and ultimately not even much money Bence, Madison expects the executive and judiciary, for reasons of personal interest and passions, often enough to resist an irregular legislature. Separation of powers, thus, supplies democracy with representatives who, not necessai'ily rIch in WIsdom or VIrtue, and not havm traditional mOUVesTiKe farnTIydistinction r wealt ut i 0 the se arate JO s t ey ho and their self-re ardin a tne best interests of democragr I---





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