1On 4 July 1776 the English colonists in North America proclaimed their independence from the motherland by ceasing to recognize the king of England as their legitimate sovereign. The common defense against England nonetheless required collaboration between the new sovereign States. At first, the union they formed was a confederation. Each state sent two representatives to a Congress which decided solely matters that were common to the different States, without any executive authority over them. In the spring of 1787 a convention was held in Philadelphia to reform the Congress and make it more effective. That convention elaborated a new Constitution, which according to some transformed the confederate structure into a federal structure, and with it a central authority empowered to have recourse if required to the army to impose its decisions on the different States. To take force, the constitutional project had to be ratified by a majority of the States. The months following its presentation would see heated debates opposing adversaries and proponents, the former being commonly referred as “antifederalists” while the proponents had already adopted the name of “federalists”. But as many antifederalists were to note, it was they who were the true federalists, their adversaries being rather partisans of a consolidation, in other words a unification of the different States in a new entity, with considerable if not total loss of their sovereignty and the mode of republican government which that sovereignty made possible.
2In a series of eighty-five articles published in New York newspapers by Alexander Hamilton, John Jay and James Madison, the three authors presented and explained the different points of the constitutional project so as to persuade New Yorkers that the constitution was necessary in order to preserve American independence, and that it contained sufficient protections so that English tyranny would not be replaced, as their opponents feared, by an American tyranny. The draft Constitution elaborated in Philadelphia was finally adopted in the summer of 1788, and the United States of America were born. The problem of the respective competences of the sundry States and the authority of the central government remained to be resolved.
3The principal protagonists in the debates of 1787-1788 were educated men who were familiar with history and the classical writers, but also had read the most important European authors of the seventeenth and eighteenth centuries, Montesquieu among them. Four aspects of the Bordeaux magistrate’s thought will occupy us here: the idea that large States are destined to become despotic; the idea that republics, small by nature, cannot protect themselves effectively unless they come together; the idea that power must limit power; the legitimate role of the judicial power.
4As Hamilton points out (Federalist IX, p. 38), the republics of which Montesquieu speaks are much smaller than the American States, so if these States were to unite to form a large state, it should give itself a monarchical or even despotic government. Moreover, to establish republican forms of government in North America, the large existing States ought to dissolve into a multitude of small republics. North America would thus become a cluster of small republics permanently at odds with each other, and thus easily fall prey to the large European powers. Now the Americans desire neither domestic despotism nor a foreign yoke. While the federalists stress the necessity of defending themselves against the designs of the great powers, the antifederalists for their part insist on the necessity of protecting against monarchy and despotism – the two often being considered as identical. And where the federalists think their fears can be assuaged only by a union based on firmer bonds that those contained in the Articles of Confederation, the antifederalists prove more than reticent faced with any suggestion of increasing the powers of the central authority.
5It is in the context of this opposition that Hamilton draws the attention of readers to book IX of The Spirit of Law. The object of that book corresponds to the federalists’ main preoccupation: the defense of the independence of the former colonies against foreign aggressors. In the first chapter, Montesquieu evokes the idea of a “federative republic” which would combine “all the interior advantages of republican government and the exterior strength of the monarchical (EL, IX, 1). By asserting that a federative republic grows out of a convention, Montesquieu conceives the birth of the federal republic in the framework of seventeenth-century contractualist thought, except that it is not individuals as such who decide to form a state but “political bodies”. And it is interesting to note that Montesquieu says about these that they become “citizens” of the new entity, assimilated to a “society of societies” (EL, IX, 1). In order for a federative republic to assume the defensive task for which it was created, the States constituting it must be of the same nature, republics being much better suited to form such durable federative republics than monarchies or a mixture of republics and monarchies. In the American case, this first condition is met: the American colonies were governed in a republican mode – or one which could pass for one if exception were made of the slaves.
6If Montesquieu does not say what a convention that sought to set up such a federative republic would look like, one could nevertheless suppose that it would begin with these words: “We, republics of …” Now the American Constitution begins with these words: “We, the People of the United States…” While some considered that this “We” designated the American people in the aggregate, that is, a unified nation whose individuals have been able to transcend their separate political affiliations; others thought that it designated the citizens of each of the several States that were joining together as citizens of such and such state. “We, the people” would then be the equivalent of “We, the States” and the newly created political society would not be a society of individuals but, in Montesquieu’s terms, a “society of societies”.
7A second condition expressed by Montesquieu is the following: “A republic which has joined in a political confederation has given itself entirely, and has nothing more to give” (“Une république qui s’est unie par une confédération politique, s’est donnée entière, et n’a plus rien à donner”, EL, IX, 3). If he takes the trouble of citing at length the first chapter of book IX, Hamilton abstains from mentioning this sentence, and for cause: one of the principal reproaches made by the antifederalists to the constitutional project was that its consequence was entirely to absorb the federated States into the federal entity. For the antifederalists, the new constitution was federal only in appearance, its true substance being national. And it was precisely to avoid this “nationalization” that the antifederalists demanded that a declaration of the rights of States and citizens be annexed to the Philadelphia document. For them, a republic which has joined in a political confederation has not given itself over entirely, and if it has nothing more to give, that is not because it has given all, but because there are certain things it does not want to give and has perfectly the right to retain.
8It was only after the adoption of the constitutional project that ten amendments would be added to complement it – and many others in the following decades. The tenth stipulates that the powers not delegated to the federal government by the Constitution, the exercise of which also is not forbidden to the States, are reserved to them or to the people. This amendment was intended to take the antifederalists’ fears into account.
9In the same third chapter of book IX, Montesquieu mentions another question that was to divide Americans, namely that of the size and power of the federated States. Among the former English colonies there were significant differences, both from the purely geographical and from a demographic, as well as economic point of view – often tied to the first two. Did the States with few inhabitants and thus sending few representatives to Congress, not risk being sacrificed on the altar of the interests of the States with a large population? Did a quarter of the States not risk imposing their law on the other three-quarters?
10To avoid this danger, the authors of the constitutional project had provided for a bipartition of the legislative power, between Congress, where the States would be represented in function of their population, and the Senate, where the States would be represented by two senators each. Moreover, the president has a right of veto. For a law to take effect, a collaboration between these three authorities was thus required. The fundamental idea was this: a single authority must not hold the fullness of power, that is, of a power which it could exercise in all domains and at its pleasure.
11It would fall to James Madison to take up this subject in Contribution 47. The opponents of the constitutional project reproached him for not taking into account the principle of liberty which requires that the three principal political powers be separate and distinct (Federalist XLVII, p. 245). In the discussion of this crucial subject, Madison tried to show that the constitutional project was not affected by that reproach and that his adversaries held a blunted interpretation of the principle of the separation of powers. It is in this context that he evoked Montesquieu, “the oracle who is always consulted and cited on this subject” (ibid.). The oracle had nevertheless not invented out of whole cloth the system which he praises in book XI of The Spirit of Law, but found it in the English constitution. So to it Madison turns to point out that it does not recognize a strict separation of the three powers. Basing himself on a reading of the English constitution and the reading that Montesquieu gave of it, Madison reaches the conclusion that this constitution – which, though that of the tyrannical nation from which the Americans have just emancipated themselves, nevertheless remains a paradigm of political liberty – nevertheless does not recognize strict compartmentalization of the three powers but aims solely to prevent one of the powers from having all the attributions that belong to another. More than a simple conflation of powers, it is their concentration that is targeted. The important thing is not that the powers be separated from each other, but that they may effectively control each other. And whereas the England described by Montesquieu was facing a political reality characterized by the opposition of different social groups, late eighteenth-century America was facing a political reality characterized by the opposition between various States – an opposition compounded by a social dimension.
12One right which the different States wished to reserve to themselves was the right to determine access to citizenship and thus to rights, especially political. It is strange that none of the authors here cites Montesquieu when he asserts with respect to democracies: “The laws which establish the right of suffrage are thus fundamental in this government. Indeed it is just as important to regulate how, by whom, to whom, and about what suffrages must be given, as it is in a monarchy to know who is the monarch, and in what manner he must govern” (“Les lois qui établissent le droit de suffrage sont donc fondamentales dans ce gouvernement. En effet, il est aussi important d’y régler comment, par qui, à qui, sur quoi, les suffrages doivent être donnés, qu’il l’est dans une monarchie de savoir quel est le monarque, et de quelle manière il doit gouverner”, EL, II, 2). Montesquieu is talking here about suffrage in legislative assemblies, but we may extend his remark and assert that the laws which establish the right to vote are fundamental in any representative government. Now a republic can perfectly well be a representative government, just as it may belong to a representative federal government. But if that is the case, then taking from a federated state the right to determine the right of suffrage would be tantamount to taking from it a fundamental right and destroying it as a republic.
13In Contribution 52, Madison, without citing Montesquieu, asserts that “the definition of the right of suffrage is rightly considered as a fundamental article of republican government” (Federalist LII, p. 268). That being so, it is important to regulate it at the constitutional level rather than abandon it to the changing opinions of Congress or entirely to the legislatures of the States. Section 2 of the first article of the Constitution stipulates therefore that the members of the House of Representatives shall be chosen every two years by electors holding the qualifications required for electors of the most numerous branch of the State’s legislative power. The States retain to be sure a certain power, but it is bounded by the Constitution.
14In this context, section 4 of article 4 made those who militated against the adoption of the constitutional project fear the worst: “The Unites States shall guarantee to every State in this Union a republican form of government […]”. What exactly was that to mean? According to Madison, the form of republican government is characterized by the fact that “the scheme of representation takes place”, which means that the government is delegated to “a small number of citizens elected by the rest”. He distinguished between republican and democratic government, where it is the people as a whole which exercises power directly (Federalist X, p. 45). To Montesquieu, “republican government is that where the people as a whole, or merely a part of the people, holds the sovereign power” (« le gouvernement républicain est celui où le peuple en corps, ou seulement une partie du peuple, a la souveraine puissance”, EL, II, 1). If the people as a whole has the sovereign power, it is a democratic republic, whereas if merely part of the people has it, what we have is an aristocratic republic (EL, II, 2). But the verb has is ambiguous: one must indeed distinguish between holding the sovereign power as such and holding the exercise of it. In a direct democracy, the people possesses both; in a representative democracy, it possesses the sovereign power, but does not exercise it – if we bracket elections in which it recovers that power for a very limited time and solely in order to elect those who will exercise the power in its stead for the following years.
15In chapter 6 of book XI, Montesquieu remarks that in a large state it is illusory to allow the sovereign power to be exercised by the people as a whole, and this independently of the fact that such an exercise would also be tied to numerous drawbacks, the people not being in fact competent to deliberate on public affairs (EL, XI, 6). To assure a republican government in a large state, one must therefore see that “in each principal place the habitants choose someone to represent them” (“dans chaque lieu principal, les habitants se choisissent un représentant”, EL, XI, 6). A few lines further down, he specifies: “All citizens in the various districts must have the right to give their vote to choose the representative, except those who are of such low condition that they are considered to have no will of their own” (“Tous les citoyens, dans les divers districts, doivent avoir droit de donner leur voix pour choisir le représentant, excepté ceux qui sont dans un tel état de bassesse qu’ils sont réputés n’avoir point de volonté propre”, ibid). In the Unites States black slaves fell into this latter category, and even if some of the Founding Fathers felt an incoherence between their universalist, egalitarian discourse and the situation of Blacks in the new political world, they put off until later the hope of an America where all adult men – the question of women’s right to vote was not a subject of discussion – would have the right to elect their representatives. Getting the new Constitution adopted in the southern States and guaranteeing the existence of the United States took precedence over the abolition of slavery.
16There remained to be discussed the question of the judicial power defined by article 3 of the Constitution, which places it in the hands of a Supreme Court and such lower courts as it shall fall to Congress to create as necessity and convenience may require. The antifederalists were very early distrustful of this Supreme Court set up by the Constitution, surmising that the constitutional judges would interpret the constitutional text not strictly by the letter, which can make it appear as not privileging the national state relative to the federal States, but as it saw fit, which was perceived as clearly “national” (The Antifederalist Papers 80, p. 230). The consequence of that would be an extension of the central powers and thus an eclipse of the self-determination of the federated States (ibid., 81, p. 234).
17Here we find a theme dear to Montesquieu, to wit the question of knowing whether the judges should hold strictly to the letter of the law or whether they should also have the right to interpret the law as they saw fit. Moreover, the American Supreme Court can also be seen as the necessary depositary of the laws of which Montesquieu speaks in book II, chapter 4: it plays the role of guardian of the Constitution and must remind the constituted powers of it when they seek to ignore or violate it. In the Federalist, Hamilton clearly affirms the necessity of a supreme tribunal, saying it is responsible for determining the meaning of the national laws in a uniform manner (Federalist XXII). This court would not be only a mouth to pronounce the words of the law, but would serve as a mouth to interpret those words in a uniform manner. And insofar as article 3 of the Constitution asserts that the tribunals are also competent on matters of equity, one can envisage that the laws of the federated States or the decisions of the tribunals in the different States could become the subject of an appeal to the Supreme Court. Partisans of States’ rights mistrusted federal judges having the power to invalidate laws voted by Congress, but also those voted by the legislative power in the different States.
18The question of the judicial power is taken up in Contributions 78-83 of the Federalist. To Hamilton, it is the least dangerous of the three powers: “The judiciary […] has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Federalist LXXVIII, p. 395-396). The judicial power is thus but a mouth, and not an arm, and for this reason it is the power of which it is least to be feared that it will attack the freedom of the people, at least as long as it remains in the function which is its own and remains separate – and here Hamilton cites Montesquieu – from the executive and legislative powers.
19Hamilton compares the judicial power to an intermediary power situated between the people and the legislative power, one of its functions being to protect the people against acts of the legislative power. The passage in which Hamilton introduces this role of the judiciary’s intermediary power is directly inspired by Montesquieu, even if the Bordeaux magistrate is neither named nor cited in this context. Not that Hamilton means to make the idea seem to be his own, but rather because Montesquieu presents intermediary powers as constituting the nature of monarchical government (EL, II, 4): Hamilton’s foes reproached the constitutional project precisely with intending to establish a monarchical government.
20In The Spirit of Law Montesquieu says that the intermediary powers must be “subordinate and dependent” (EL, II, 4). Hamilton, for his part, alludes to those who assert that if the judiciary is empowered to quash laws voted by the legislative power, the former power is superior to the latter. But in that case, Americans will no longer be governed by their elected representatives, but by an elite of nine judges or merely five, given that the decisions are taken by simple majority. Does the republic not risk transforming itself into an aristocracy of judges?
21Hamilton responds by presenting the judges as guardians of the Constitution, and it is the Constitution which is the expression of the people’s will. When the judges declare unconstitutional and thus null a law voted by the legislative power, they do not substitute their will for the legislator’s, but affirm the fixed will of the united people against the changing and arbitrary will of the majority of the members of the legislative power. For Hamilton, the judges “ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental” (Federalist LXXVIII, p. 398). The judges are thus raised to the rank of protectors of the people and, according to Hamilton, they can adequately play that role only if they are protected from the legislative power, which notably does not have the right to recall them nor to diminish their remuneration during their term of office. Conscious of the risks associated with the position he defends, Hamilton views them as lesser than those associated with the opponents’ position.
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