The Seven Walls of Fortress America, Part III

The Importance of Mixed Government as the Fifth Wall of the Constitution

“The Lord of the City was master of his Council, and he was in no mood that day to bow to others. Early in the morning the Council had been summoned. There all the captains judged that because of the threat in the South, their forces were too weak to make any stroke of war on their own part. ‘Yet,’ said Denethor, ‘we should not lightly abandon the outer defenses...’ ” — J.R.R. Tolkien, The Return of the King

Freedom is always under siege from the roving bandits that seek to tyrannize and plunder the free. To protect themselves, the Founding Fathers of the United States erected the Constitution as a citadel of freedom. Like Minas Tirith, it was built with seven walls. From outer to inner, the walls are:

1. A written constitution.

2. A vertical separation of powers.

3. A horizontal separation of powers.

4. A government of enumerated powers.

5. A government of mixed type.

6. A bill of enumerated rights.

7. A militia of the people.¹

All seven walls have been breached. Two weeks ago we discussed the collapse of the first three walls and last week we documented the collapse of the fourth wall. This week we’ll introduce the fifth wall. Unlike the first four walls, the fifth wall is virtually untaught and forgotten in contemporary civics, so there’s much to discuss.

A Government of Mixed Type

The Wall: The concept of mixed government was developing during classical antiquity and used to explain the stability and success of the Roman Republic as a form of government. The Founding Fathers of the United States so firmly believed in mixed government that they embodied the concept into the U.S. Constitution and then defended it at length in books and papers. The U.S.A. was always intended to be a mixed government (sometimes called a polity or republic), not a democracy. A government of mixed type was to have been the fifth wall of Fortress America’s defense against tyranny.

The concept of mixed government has been largely forgotten in the present day, so I want to take a few paragraphs (well, many paragraphs) to explain what it is, where it came from, and how it was embodied in the Constitution. The idea behind mixed government is that having different forms of government within one system prevents the accumulation of absolute power and affords checks and balance between the forms.

Having “mixed government” is often confused with having “separation of powers,” but the two are entirely distinct. The advocate of separation of powers wants to maintain a division between executive, legislative, and judicial power; the advocate of mixed government wants to maintain a balance between democratic, aristocratic, and monarchical power. The Framers wanted both (along with federalism).

The concept of mixed government likely originated with Plato. Writing in the 4th century BC, he argued that there were three forms of government - monarchy, where one person rules; aristocracy, where a small group rules; and democracy, where the people rule. Plato believed that each form had the potential to result in power being wielded unjustly, with monarchy potentially devolving into tyranny, aristocracy into oligarchy, and democracy into mob rule and anarchy. Plato believed that the ideal form of government was a system that blended these three social orders, with each having an equal role in the legislative process. However both Plato and his intellectual successor Aristotle considered this ideal to be almost impossible to achieve in practice.

The ancient Greek historian Polybius, writing in the mid-2nd century BC, agreed that there were three basic forms of government — monarchy, aristocracy, and democracy — and that these three basic forms of government eventually devolved into their respective corrupt forms — tyranny, oligarchy and mob-rule — through a process he calls anacyclosis, or "political revolution." However, he disagreed with Plato and Aristotle about the inevitability of anacyclosis. Plutarch believed that Republican Rome had avoided this cycle by creating an actual, real-world, mixed constitution, a single system of government that included elements of all three forms of government - monarchy (in the form of elected executives, the Consuls), aristocracy (represented by the Senate) and democracy (in the form of popular assemblies, such as the Comitia Centuriata).

Polybius’s view that Rome was built on mixed government became the dominant view held by the Romans themselves. For instance, Cicero, writing around 54 BC, argued for the stability of a mixed constitution against the ravages of anacyclosis:

For the primary forms already mentioned degenerate easily into the corresponding perverted forms, the king being replaced by a despot, the aristocracy by an oligarchical faction, and the people by a mob and anarchy; but whereas these forms are frequently changed into new ones, this does not usually happen in the case of the mixed and evenly balanced constitution, except through great faults in the governing class.

He later declared the mixed constitution to be “the most splendid conceivable” form of government, “a form of government which is an equal mixture of the three good forms is superior to any of them by itself.”

The concept of mixed government was abandoned during the Roman Dominate and the Middle Ages, but it returned to glory during the Renaissance and the Enlightenment. Niccolò Machiavelli, in “Discourses on Livy,” discussed the need for a mixed government to maintain stability and avoid the degeneration of government into tyranny; Jean Bodin, in “Six Books of the Commonwealth,” cited mixed government as necessary to maintain stability and prevent tyranny; and James Harrington, in “The Commonwealth of Oceana,” proposed a model of mixed government.

The superiority of mixed government was taken for granted by most Americans prior to the American Revolution. The British government, with its monarchical King, aristocratic House of Lords, and democratic House of Commons, was obviously mixed, as were the American colonial governments, with power shared among a royal governor, a small advisory council, and an assembly elected by the colonists.

After the Revolution, most of the founding fathers of the newly-established United States continued to believe that mixed government should be the defining feature of a constitutional state. Put simply, the US was to have a monarchical President, an aristocratic Senate, and a democratic House of Representatives. Rather than me attempt to persuade you of this in my own words, let me offer some of the Framer’s own voluminous commentary on the matter to prove that they believed mixed government to be utterly essential to the preservation of liberty.

In his 1772 book A Defense of the Constitutions, John Adams, a prominent supporter of mixed government, wrote "The most successful governments in the world are mixed. The republics of Greece, Rome, and Carthage were all mixed governments." Adams dedicated an entire chapter to the doctrine of the mixed constitution, anacyclosis, and the evaluation of the Roman system of checks and balances by Polybius. Adams, like Polybius, attributes Rome's success to its constitutional division of powers, writing:

The Roman constitution formed the noblest people and the greatest power that has ever existed.  But if all the powers of the consuls, senate, and people had centered in a single assembly of the people, collectively or representatively, will any man pretend to believe that they would have been long free, or ever great?

In Federalist Paper No. 40, “The Powers of the Convention to Form a Mixed Government Examined and Sustained,” James Madison, widely acknowledged as the chief architect of the United States Constitution, bluntly stated that the Constitutional Convention had established a “mixed constitution.” Later, in Federalist 47, Madison defended mixed government against democratic critics, writing:

The accumulation of all powers… 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.

In Federalist 51, Madison explained that pure democracy would not prevent a government from becoming despotic:

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions… It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure… In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature

In Federalist 60, Alexander Hamilton distinguished the House, the Senate, and Presidency in terms of who they represented:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

In Federalist 62, Hamilton explained the vital importance of the aristocratic Senate as a counterweight to the turbulency of the democratic House:

The necessity of a senate is… indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. A body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.

The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government.

No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

In Federalist 63, Hamilton and Madison discussed the importance of having a body of virtuous men (aristocrats in the true sense of the word) capable of defending the commonwealth against the vagaries of democracy. Athens, the exemplar of democracy, came under fire for failing to be a mixed government:

[A]n institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions… [T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? .

In Federalist 69, Hamilton defends the office of the American Presidency from accusations by the Anti-Federalists that the President will be able to be as tyrannical as the British King had been. He emphatically does not do so by stressing that the Presidency is actually a democratic institution elected by the people — because it wasn’t. Instead, he argues that the Presidency is a better implementation of the monarchic form than that of the British Monarchy. He actually goes line by line through every power of the British Monarchy and shows how the US President has a better-balanced implementation of the same power.

The executive authority… is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.

The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments…

Finally, in Federalist 71, Hamilton reiterated his warnings about democracy and cautioned again that “pure” government forms must be avoided:

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests… The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible.

That the Framers of the Constitution were facing critique of its mixed government from Anti-Federalist advocates of purer democracy is made plain by the sheer volume of writing they assembled to defend against such critique; that same writing demonstrates how and why mixed government was seen by them as an important wall.

The Breaches: The United States has undergone such significant historical developments over the course of its history that it has transformed its government from a stable mixed constitution to a democracy, of almost exactly the sort which the Framers worried would be prone to mob rule. In fact, the historical progress towards democracy has gone so far that most Americans take it for granted that their country was always democracy, and are unaware that it was originally a government of mixed type; and of those that do know that, most of them believe that democracy is superior and the changes represent great progress.

The fifth wall, in other words, has not just been breached. It has been obliterated, flattened, and paved over with a sidewalk. It has ceased to exist completely.

The fifth wall was first breached in 1824, when the majority of states began to appoint presidential electors on the basis of a statewide popular vote. Prior to that year, a number of different systems had been in use:

1. The State Legislature system: Under this system, the legislature of each state was responsible for choosing the presidential electors for the state, giving the general public no direct vote in presidential elections.

2. The Districts system: In this system, states were divided into districts, either using pre-existing congressional districts or creating new districts specifically for the presidential election. Voters were then able to elect one or multiple electors from their district.

3. The Statewide system: This system, also known as the "winner-takes-all" system, is the most commonly used system today. Under this system, voters in a state vote for candidates, and all of the state's electoral votes are cast by electors nominated by the candidate who received the most votes in that state.

4. The Hybrid system: Some states used a combination of these methods, allocating some electors through the state legislature, some from districts, and/or some from a statewide general ticket.

The graph below illustrates the usage of each major method of choosing presidential electors during 1789 to 1836. 1824 is the key turning point. Since then, more and more states have adopted the statewide system. Today, 48 of the 50 states use the winner-takes-all statewide system. Only Nebraska and Maine do not.

The shift towards the statewide winner-take-all system was not made for ideological reasons, but rather as a result of practical considerations. State leaders aimed to increase support for their preferred candidate, and once some states adopted this approach, others had no choice but to follow suit in order to avoid weakening their own candidate's position. But, as James Madison admitted in a 1823 letter to George Hay, the Framers had not foreseen the use of winner-take-all rules in the selection of electors. Their careful plans for a president elected by natural aristocrats had been dashed!

The switch to the statewide system for presidential election directly led to the election of President Andrew Jackson in 1828, and the rise of what become known as “Jacksonian democracy.” Jacksonian democracy caused the second breach in the fifth wall. The Jacksonian political movement sought to expand the franchise and give more power to the common people. This led to the elimination of property qualifications for voting and fixed the two-party system as a lasting part of American government. Critics (now and then) believed that the trend towards universal suffrage led to a government that was far more susceptible to the whims of the masses, and resulted in a less stable and less predictable political environment.

The fifth wall was demolished by the passage of the 17th Amendment in 1913, which provided for the direct election of senators by the people. Prior to this amendment, senators were selected by state legislatures. The Senate was intended to put a check on the passions of the people and allow for cooler, wiser statesman to maintain a stable and steady grip on policy in the face of majority opinion. The 17th Amendment was intended to create the opposite: A senate that was closely aligned with the views of the majority of the people.

The rubble of the fifth wall was paved over and turned into a sidewalk by the elimination of the poll taxes and other voting restrictions in the 1960s. By the middle of the 20th century, America clearly saw itself as a democracy with a commitment to universal suffrage. Poll taxes and voting restrictions were hard to justify in such a system, but had been kept around by the Democratic Party because they were so useful for disenfranchising minority voters without being obvious about it. The Voting Rights Act of 1965, among other things, eliminated the possibility of such shenanigans and helped to ensure that every citizen had an equal opportunity to participate in the political process. It’s hard to criticize this decision; having destroyed the fifth wall, it made sense to pave it over. Poll taxes were just the rubble of a wall that had been destroyed, and they served no legitimate purpose anymore, only an illegitimate one.

For good or for ill, modern America has obliterated the concept that the Framers saw as central to their whole project: the government of mixed type. The following quote is sometimes attributed to Benjamin Franklin, sometimes to Alexis de Tocqueville, and sometimes to Alexander Fraser Tyler. Whoever wrote it, it is perhaps the most succinct criticism of pure democracy ever written:

A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world's greatest civilizations has been 200 years. These nations have progressed through this sequence: From bondage to spiritual faith; From spiritual faith to great courage; From courage to liberty; From liberty to abundance; From abundance to selfishness; From selfishness to apathy; From apathy to dependence; From dependence back into bondage.”

With the fifth wall long gone, perhaps we must ask: do we find ourselves in this sequence now? If so, at what stage? Contemplate this on the Tree of Woe.

1. The attentive among you might have noticed that the seventh wall listed here is different from the seventh wall listed in parts I and II. Previously I listed the seventh wall as unenumerated rights, but now I list it as the people’s militia. The research I’ve done in writing this essay series has convinced me that the framers saw unenumerated rights as that which must be defended, rather than a defense in and of themself; the militia itself was the last wall. The sheer volume of ink spilled in the Federalist Papers about the militia attests to it. I will eventually go back and edit the seventh wall in the prior essays, but I didn’t want to do so without being open about the fact I had reached a different conclusion than I first expected.