Two (Needed) Paths for Limiting Government

Distinguishing the Mixed Regime and Separation of Powers

“Power tends to corrupt and absolute power corrupts absolutely.” British historian Lord Action wrote this famous line in an 1887 letter to Church of England Bishop (and historian) Mandell Creighton. The American political system, especially our Constitution, structures political authority in response to this kind of claim, a fundamentally theological claim that all men are sinful. In Federalist 47, Publius (James Madison) wrote that, “[t]he accumulation of all powers…in the same hands…may justly be pronounced the very definition of tyranny.” The Framers of our Constitution thus established a system that divided political power among distinct institutions intended both to operate with significant independence while also possessing tools to restrain each other. Among other goals, they did so in order to limit the power any one person or institution held and thereby to protect against unjust government action.

Of course, the history of dividing political power to inhibit tyranny did not begin in Philadelphia in the Summer of 1787. Neither did past efforts only look like what the American people ratified the following year. We could benefit from tracing out this longer history of political structure as we face today’s challenges, especially a landscape dominated by weak, dysfunctional, and discredited institutions. In particular, we should distinguish between two ways by which political thinkers and actual regimes historically have divided power. For in popular discourse, we often tend to place all such attempts into the same category with some problematic results.

The first method of dividing power grew out of the ancient classification of regime types. Classical political thought created a taxonomy of governmental-types grounded in the question of who ruled. The answers began numerically—one, few, or many. Ancient political philosophers and historians refined this starting point by distinguishing whether the one, few, or many ruled well or not. This standard’s starting point consisted of whether the ruler(s) pursued the common good or merely the good for themselves. We will take Aristotle’s summary as an example. The good rule of one typically received the name monarchy and its evil twin, despotism. He called the right rule of the few aristocracy and its (bad) mirror image oligarchy. Finally, Aristotle called the good version of popular rule politeiah or polity and the bad version, democracy. While other ancient and medieval philosophers might give distinct names and nuances to these forms, the broad categorizations held with significant consistency.

One refinement to these classifications directly concerns our discussion. In addition to pure forms of each regime-type, another arose that involved sharing of power between some combination of one, few, and many within the same regime. Aristotle referred to this mixed system as a politeia or polity (confusingly, the same name as rule of the many).

This mixture sought to answer problems that erupted in practice in the pure regime types. These problems originated in the combination of human distinction and human fallenness. Regarding human distinction, given differences in human ability and opportunity, different social and economic classes arose within any given society. These classes usually divided between some form of the common-man “many” and the elite “few,” however a community distinguished them. Given fallible human nature, each pure regime-type faced the temptation to govern just in the ruler’s interest. If the few (or the one) ruled, they tended to oppress the many. If the many ruled, they tended to pillage the few. Thucydides’ telling of the Peloponnesian War and just about any retelling of the Roman Republic displayed how political communities faced regular, even constant, strife in the social and political manifestation of class conflict.

The ruler’s oppression in these instances was far from always a result of conscious, amoral selfishness. Instead, the disagreements also stemmed from an intellectual error manifesting in distinct views of justice. The many tended to view equality as the main lens through which to understand justice and thus rightly to order a community. The few tended to see some kind of inequality—whether of birth or merit—as the standard by which to make a hierarchical legal and social system. Those who supported a mixed regime believed both claims to have elements of truth: we are both equal in some ways an unequal in others. However, when pursued purely and thoroughly, each claim resulted in significant injustice. Sharing power between some combination of one, few, and many could mitigate if not remedy this problem. It could channel the extremes, resulting in laws that parsed out the competing claims of equality and inequality and thereby came closer to the common good.

In addition to Ancient philosophy and history, the Medieval era also saw significant support for some type of mixed regime. England and its development was considered a later example. The monarch represented the rule of one, the House of Lords the rule of the few, and the House of Commons governance by the many.

The other system for dividing power was known as separation of powers. This theory came to prominence in the Early Modern period of Western Civilization, especially in the 17^th and 18^th centuries. The English Civil War and, later, the Glorious Revolution were crucial to its practical development during this period. Separation of powers’ theory also sought to restrain governmental power by giving its exercise to distinct persons and/or institutions. However, separation of powers came at the division from a different angle. Instead of dividing up institutions according to who ruled, this system distinguished institutions according to what they did. Separation of powers views political power as consisting of naturally distinct sub-categories. While all political, each type of power involves a distinct element of political authority. This theory divided political power along this distinction of function, establishing separate institutions each constructed to wield the particular political power allotted to it. This distinction forms a crucial element of the American Constitution. That document begins each of its three articles creating the departments of government not with the institution itself but with the preexisting type of power the Constitution vests it with.

In these articles, our Constitution sees a tripartite division in political power into lawmaking (legislative), law-enforcing (executive), and the adjudication of disputes according to law (judicial). The creation of Congress as the legislative branch, the presidency as the executive branch, and the courts as the judicial branch follow from this view. The Framers constructed each institution with two broad goals. First, to make each institution best adapted to exercise the power given it. The plural Congress, unity presidency, and lifetime-tenured judges all come from how the Framers saw the nature of the power those institutions exercised. Second, the Framers sought to make each branch the right combination of independence from while also capable of limited but effective restraint of each other.

Doing so, they hoped, would make government better at its prescribed work of pursuing justice. This goal included restraining overreach. Dividing power between branches, with the capacity of mutual checks and balances, could keep tyranny at bay, or so the theory went.

For some, separation of powers was considered a replacement for the mixed regime. Historically, this proved the case in many political communities. In the Early Modern period and beyond, the rule of the one or the few increasingly fell out of favor. England again provides a good example here, with the Monarchy and the Lords’ share in real political power eventually giving way to the democratic Commons. Separation of powers permitted a regime to have a pure form of rule, usually now the people, while maintaining some institutional mechanism for limiting that rule. Here, again, the division was not who ruled ultimately but in who exercised that rule when delegated to governmental institutions. Thus, America could found itself as a republic while still seeking ways to mitigate or even stop majority tyranny.

But we should be cautious to fully follow this switch. Both the mixed regime and separation of powers result from permanent truths about human politics; they each also suffer from shortcomings in their response to them. We today experience these limitations even as we partially benefit from their insights.

Both systems face the question of whether one really in practice can divide political power in any lasting way. Thomas Hobbes presents an example of those who argued that such division only leads to civil war and that, in the end, one section of society and one institution eventually gains predominance. However, if class distinction and thus conflict exist in society regardless of structure, then a unitary form of sovereignty and of its exercise just masks over the problem, itself inviting revolution and civil war with no political mechanism for working out such differences within the political system itself.

This point leads to a problem particular to separation of powers. Those supporting it often have underplayed the stubborn role of class politics in the modern world. The mixed regime, by contrast, rightly sees that political communities never will achieve homogeneity. Classes will continue to exist regardless of how we try to structure our societies. Granted, America’s Constitution forbids legalized class structures in its ban, directed toward both state and national governments, on granting titles of nobility. Partly as a result, our classes have been fluid with many families moving between them generationally or even persons doing so in the course of their lives. However, we still have social and economic classes in America. Our current political moment has forced us to reckon with the fact that divisions between the perceived interests of the common man and of elites persists culturally and has ramifications politically. This point always has been true and an honest look at our politics going back to the 1790s would support that claim. But we now can see it now with a clarity obscured in recent times. More open recognition today should yield greater attention to how to address them. Returning to the Federalist, the most famous of its numbers, Federalist 10, says that, “The regulation of…various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”

Moreover, separation of powers suffers from its own system of classification. Not every system built on this theory makes the same distinctions. French thinker Montesquieu and English philosopher John Locke both had three distinct powers. Locke, in his Second Treatise, divides political power into legislative, executive, and federative. Montesquieu, on the other hand, categorized political power into legislative, executive, and judicial. Thus, Locke saw the judicial power, not as theoretically distinct, but as a part of the executive, the legislative, or perhaps both. Similarly, Montesquieu did not have a distinct federative power—the power involving foreign relations between regimes—seeming to place it predominately with the executive. This difference is more than purely theoretical, if we take Federalist 47 seriously. The fuller quote given above says, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” To miscategorized the separation of powers means to combine powers that should not be combined. And to combine powers that should not be combined, by Madison’s logic, leads to the very tyranny the system seeks to avoid. A number of debates over foreign policy in America, going at least back to the Pacificus-Helvidius debate in the 1790s, concerns the problem of figuring out how foreign affairs should be categorized in our separation of powers’ schema.

Despite these problems, the answer cannot be a mere return to the mixed regime. For one, those forms did tend to underplay significantly the claims to human equality and what the legal ramifications of that principle should entail. The oppression of the people in cruel ways often was the result. In line with this point, it also is impracticable. There is little chance in the present moment for bringing back explicit rule by one or a few if their exercise of power is not ultimately based in popular consent. Just try something as modest as repealing the 17^th amendment, which would return the choosing of senators to state legislatures. That move merely make the senator the indirect choice of the people, not the direct. However, the howls that doing so would undermine the people’s rule would torpedo any such attempt.

For another, the mixed regime suffered from its ignoring of the functions of government that separation of powers provides. By not seeing clearly enough and acting upon the distinctions between functions, these functions often consolidated in a particular institution. That combination eventually destroyed the capacity for sharing of political power and thus the mixed regime itself. In that way, the mixed regime’s health depends in part on its understanding about and implementation of separation of powers.

Instead of choosing, we might look for a political philosophy and a political theology that combines insights from the two. One place might be the man best-known for separation of powers. Some consider Montesquieu’s The Spirit of the Law as transitioning from a mixed regime schema to one of separated functions. However, this view massively oversimplifies his thought. Consider just Book 11 of The Spirit of the Laws. Chapter six famously articulates the tripartite division between legislative, executive, and judicial functions. However, the latter portion of the same book then reads Montesquieu’s separation of powers back into the ancient mixed regime. Montesquieu posits the possibility, even the preferability, of a political structure that consciously combines the two.

In the American context, John Adams, the second president of the United States, is the most famous representative of this school. His sprawling, at times brilliant and at others rushed, multi-volume Defense of the Constitutions of the United States also argued for a combination of the mixed regime with a scheme of separated powers. Adams did not focus on bringing back legalized classes and neither should we. However, he saw that, even with the elimination of conscious, legal classes, society always would have them and politics must react accordingly. We, too, should seek to use political power to channel competing societal interests toward the common good.

This combination of the insights of the mixed regime and of separation of powers could yield helpful results. It could be the springboard for reforming our current institutions away from their present combination of ham-fisted pursuit of partial interest and ineffective attempts at pursuing the common good. Doing so would take deep theoretical knowledge, savvy displays of prudence, and ample courage. Those are hard to find at any time and especially our own era. But it is possible. And if absolute power does corrupt absolutely, then the answer to whether we should try must be…absolutely.

Image Credit: Signing Of The Constitution (1987), Louis S. Glanzman.

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