Our founders were heirs to a great “mixed constitution” tradition—a tradition that insisted on balance and harmony among parts of the state to prevent anarchy and tyranny. Today that balance is threatened by the concentration of power in the same political party in the legislature and the executive, by proposals for radical judicial reform, by the use of impeachment as a mere political weapon, and by the use of censorship to advance one political agenda.

Introduction

For more than two hundred and thirty years, our constitutional republic has been founded on the theory of the “mixed constitution,” a doctrine developed in antiquity by Aristotle in his Politics and his disciple Polybius in his History of Rome, and modified in modern times into a doctrine of checks and balances by Locke, Montesquieu, and Madison, among others. The essential principle of that doctrine has always been that it is tyranny for one person or one group of persons to control the government and dictate to the society. Our constitutional democracy has been premised on the assumption that such concentrated power is dangerous and leads to what the ancients would have called a precipitous devolution of power into mob rule and tyranny.

Today in America, that mixed constitution basis of government is very much in crisis.

This is true, not only because both houses of Congress and the Presidency are now in the same party’s hands. That is not unprecedented. What is different is all the talk of other constitutional changes: “packing” the Supreme Court to ensure that the controlling party in the executive and legislature also controls the judiciary; eliminating the electoral college; and using impeachment as a political tool in an unconstitutional way. When all this is combined with what many see as an atmosphere that is not open to debate and in which political correctness is the rule of the day, the stage is set for the closing of the mixed constitution tradition in what the English author Walter Bagehot aptly called our constitutional “government by discussion.”

The Ancient Doctrine and its Contemporary Relevance

In his book The Theory of the Mixed Constitution in Antiquity, classical scholar Kurt von Fritz says that “no part of ancient political theory has had a greater influence on political theory and practice in modern times than the theory of the mixed Constitution.”[1] The theory proceeded from the assumption that there are two classes in every state—the rich and the poor—and that it is important that neither class dominates the law or the government. Both oligarchy, rule of the rich, and democracy, rule of the poor, were seen as defective because each permitted one of the two classes to dominate. The solution was to mix these types of government into a political structure in which moderation, proportion, and balance would prevail.[2]

This social-class basis of the doctrine seems rather unappealing to the modern ear. After all, few of us would say, if asked about our checks and balances, that it means the rich check the poor and the poor check the rich. That is how important Polybius’s later refinement of the doctrine was; he took the Greek class-based doctrine and made it a theory of checking and balancing of government institutions, using the Roman Republic as a model. Still, we might well say that there are two “camps” in America today: the Right and the Left, symbolized by the red states and the blue. And, adopting the mixed constitution theory, we might well agree with the ancients that the best government is one that does not allow either of those “camps” to dominate the regime or the society.

Understood as a system in which neither poor nor rich dominated, the mixed constitution idea seems to have had its origin with the ancient Greek lawgiver Solon and his Athenian Constitution of the sixth-century B.C. Aristotle scholar Sir Ernest Barker calls Solon’s model an attempt to “translate into practice” the Delphic oracle’s teaching on limit and moderation. Perhaps the radicals of both sides today would do well to recall “the beauty of temperance, … that a bound is set to all things which they may not overpass.”[3] Aristotle later emphasized the virtues of this regime in his Constitution of Athens: Solon “did not allow either party to triumph over the other in violation of justice.”[4] One wonders whether it is in keeping with the spirit of that remark for the victorious party in a presidential election to impeach the loser, and later try to convict the ex-President after his term of office had expired. Presumably it would not have been just if such a course had been pursued against John or John Quincy Adams, Taft, Hoover, Carter, or George H.W. Bush. Contrary to what we are told in the news, the truly unprecedented aspect of this year’s inauguration was not that the losing candidate left Washington without greeting his successor. Both John and John Quincy Adams did that. What was new was the action by the incoming Congress to impeach and try to convict the losing, outgoing President, one week before and then after the expiration of his term.

Despite the importance of Solon’s contribution, as von Fritz explains, “the theory of the mixed constitution” in the classical sense “appears for the first time in Plato’s political writings.”[5] Of course, Plato did not put any limits on the power of the philosopher kings in his Republic, assuming—as some seem to do about our Supreme Court—that absolute power “exercised according to their superior insight without [their] being bound by hard and fast laws and regulations” is no danger. In his later dialogues, however, Plato reflects on what might happen if the ideal ruler is not found. As such, he concludes in The Statesman, a “man with such absolute power will be bound to employ it to the hurt and injury of his personal enemies and to put them out of the way.”[6]

Plato makes the same point about the dangers of corruption of power in The Laws. If we really are about to embark on a Court-packing plan and the abolition of Senate procedures like the filibuster, we might do well to recall the Athenian’s argument, in Book IV of The Laws, that when a state emerges in which “those who gain the upper hand so entirely monopolize the government as to refuse all share to the defeated party,” the rulers live in constant fear of uprising. “Such governments are not polities at all,” the Athenian says, “nor are laws right which are passed for the good of particular classes and not for the good of the whole state. States which have such laws are not polities but parties, and their notions of justice are simply unmeaning.”[7]

In his Politics, Aristotle agrees with Plato that both the poor and the rich demand constitutions that favor their interests. Democracies, rule of the poor, and oligarchies, rule of the rich, thus arise. Both are partial, democracies favoring the poor and oppressing the rich and oligarchies favoring the rich and oppressing the poor. Both lead to bad extremes: oligarchy to a situation in which wealth is an end in itself, and democracy to anarchy and mob rule. Aristotle’s mix is thus one of oligarchy and democracy, which must be combined in a polity in accord with moderation and proportion for the sake of harmony and stability.

It is in his discussion of the causes and character of revolutions in Book V of his Politics that Aristotle offers observations most directly relevant to our current situation. In Chapter III of Book V, he talks about “the disproportionate increase of a part of the state” as a cause of “constitutional changes.” The human body, Aristotle analogizes, is made up of parts, “and it must grow proportionately if symmetry is to be maintained.”[8] Similarly, if the state goes too far in the direction of the rich, or too far in the direction of the poor, the proportion, the balance, is destroyed. In modern terms, a sharp turn to the Right or to the Left carries the potential for the foundering of the ship of state.

Aristotle has much to say that is relevant to our modern situation, of course. Even more, however, does Polybius, whose writings represent the culmination in the development of the mixed constitution doctrine in Greek political thought. Like Aristotle, Polybius identifies three simple forms of government—government of one or kingship, government of few or aristocracy, and government of many or democracy—and, like Aristotle, he talks about how each is “soon perverted into the corresponding form which is proper to it and naturally follows on it.”[9] Under what he calls a natural cycle of regimes, kingship degenerates into tyranny, then later aristocracy into oligarchy, and eventually democracy into anarchy, paving the way for the rule of one man again.

For Polybius, then, a mix of kingship, aristocracy, and democracy is the best possible regime. It is not a permanent way out but a temporary expedient that delays the inevitable progress of the cycle.

It goes without saying that, in our system, we too have such a mix—the presidency is the kingship element, the Senate and Supreme Court are our aristocracy, and the House of Representatives gives our regime its democratic character. And it should not escape our notice that Polybius would certainly point to the violence on both sides in the days leading up to and following the presidential election and see it as a sign that we are moving precipitously from democracy to mob rule and anarchy, an unhappy state of affairs that can end only in what both Plato and Aristotle called the worst form of government, tyranny. If we lose the balance of our regime, the ancients would tell us, we are doomed to just such a fate.

Locke and the Framers: Our American Mixed Constitution

In his Second Treatise on Government, John Locke says that “it is too great a temptation to human frailty, 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, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage.” Locke thus goes on to call for a separation of powers between the legislative (law making) and the executive and federative (law executing). Such separation, Locke tells us, is necessary to avoid tyranny, which he defines, very much in the ancient tradition, as “the exercise of power beyond right,” or “making use of the power anyone has in his hands, not for the good of those under it, but for his own private separate advantage.”[10]

The “Father of our Constitution,” James Madison, of course, took Locke’s admonitions—and those of Montesquieu, who gives us a separation of legislative, executive, and judicial powers, and whom Madison quotes—and gave them a new form in Federalist 51. There, in words that serve as the founding text of our American system of checks and balances, Madison states the case explicitly:

But the great security against the gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must, in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition…. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.[11]

In short, our founders were heirs to a great mixed constitution tradition—a tradition that insisted on balance and harmony among parts of the state to prevent anarchy and tyranny. It remains to be seen how that balance is now threatened.

The Mixed Constitution in Crisis

There are certainly many political developments of the last year which suggest our mixed constitution model is now in jeopardy. I have alluded to some already. Now I shall focus on two that are most egregious: the proposed “packing” of the Supreme Court and the use of impeachment as a partisan political weapon in the hands of the majority in the legislature.

When historians use the term “Court packing,” they are referring to the ill-fated attempt by President Franklin D. Roosevelt, at the start of his second term in office, to enlarge the Supreme Court to protect his New Deal legislation, which was being struck down by the “nine old men” on the bench. Roosevelt’s idea was simple enough: When any Justice reached the age of 70, he was to be offered retirement at full pay. If he refused to retire, he would stay on, but a new Justice would be added to the Court by presidential appointment, up to a maximum of six additional Supreme Court Justices.

There was, and is, nothing explicitly unconstitutional about such a congressional measure. The Constitution does not specify the number of Justices, and, indeed, we had six Justices including the Chief Justice for much of our history; the tradition of nine only began after the Civil War. Still, we have had nine Supreme Court Justices for nearly 150 years. The late Justice Ginsburg said that “nine is a good number” for the Court, and for Congress to change that now would be an unprecedented interference in the separation of powers between the legislature and the judiciary. Our new president once said, on the floor of the Senate, that court packing—by FDR or any president—was a very bad idea. It will be very unfortunate if he listens to contrary advice and tries to get Congress to adopt such a plan now. Doing so would truly harm the mixed constitution checks and balances as it would be an attempt, whether successful or not, to ensure that the Court, like the legislature, and now the executive, is dominated by the same political ideology.

If court packing is worrisome, even more so has been the conversion of impeachment, a deliberately extreme remedy designed by the framers only for “high crimes and misdemeanors,” into a blatantly political weapon by the majority party in the House of Representatives. As Alan Dershowitz put it in his remarks to the Senate a year ago, in America the legislature is not the judge of its own power. The framers, Dershowitz correctly said, emphatically rejected vague phrases like “abuse of power” and “malfeasance in office” in defining impeachable offenses. The same actions can be deemed abuse of power if done by one person and not if done by another. Should Lincoln have been impeached for suspending habeas corpus, TR for threatening to send in troops to end the coal strike, FDR for sending destroyers to Britain without a declaration of war, Truman for seizing the steel mills, and so on? Under the criterion of abuse of power—a term used by the House managers in the first impeachment of President Trump—most presidents could have been impeached. Steeped in the tradition of the mixed constitution and Madisonian checks and balances, the framers did not want the president to serve at the pleasure of the legislature. Nor did they anticipate or intend trying or convicting an ex-President. Trying a president for impeachment after his term ends is not only vindictive; it amounts to a Bill of Attainder, an action by a legislature punishing an individual, in clear violation of the Constitution. In their zeal to have their way, the Democrats in Congress twice allowed their fear and hatred of one man to establish a precedent that would do irreparable damage to our mixed constitution, converting impeachment into an ordinary political weapon, to be used freely whenever the legislature is of a different party—or different point of view—than the executive. That is really carrying what the English observer Walter Bagehot called the weakness of our system to the breaking point.

Conclusion

There are many other ways in which our mixed constitution model is threatened today, most notably by the atmosphere of censorship exemplified by, among other things, the government’s apparent acquiescence in High Tech’s suppression of the Hunter Biden story in the days leading up to the election. Rod Dreher focuses on that climate of fear in his recent book Live Not By Lies, in which, quoting the late Alexander Solzhenitsyn as well as Hannah Arendt, he warns of an impending “soft totalitarianism” threatening our society.[12] To see such a tyrannical future as imminent may be an exaggeration. Still, it is important to perceive the considerable threats to our mixed constitution tradition—not only in the concentration of power in the same political party in the legislature and the executive, but also in the proposals for radical judicial reform, the use of impeachment as a mere political weapon, and the use of censorship to advance one political agenda.

America is at a crossroads today. As always, Lincoln put it best: “We will nobly save or meanly lose the last best hope on earth,” our proudly American mixed constitution tradition.

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Notes:

[1] Kurt von Fritz, The Theory of the Mixed Constitution in Antiquity: A Critical Analysis of Polybius’ Political Ideas. (New York: Columbia University Press, 1954), v.

[2] See M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), 33-36 and von Fritz, 76-83.

[3] Sir Ernest Barker, Greek Political Theory: Plato and His Predecessors (NY: Barnes and Noble, 1946), 49.

[4] Aristotle, Constitution of Athens, trans. von Fritz and E. Kapp (NY: Hafner, 1950), 72.

[5] Von Fritz, 78.

[6] Plato, Statesman, 294a-295b and 310d.

[7] Plato, Laws, Book IV.

[8] Aristotle, Politics, Book V.

[9] Polybius, Histories, Book VI.

[10] Locke, Second Treatise, chapters 12 and 18.

[11] James Madison, Federalist 51.

[12] Rod Dreher, Live Not By Lies (NY: Sentinel/Penguin Random House, 1920), Part One.

The featured image is a detail from “Allegory of the Good Government” (between 1338 and 1340) by Ambrogio Lorenzetti (1290–1348) and is in the public domain, courtesy of Wikimedia Commons. It has been brightened slightly for clarity.

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