“Some Ordering and Moderating Power”

The Unitary Executive as the Guardian of Public Liberty

I’ve recently been interested in a longstanding theme in classical constitutional theory that has been largely neglected in the modern literature: plural tyranny, the concern that the worst form of tyranny, contrary to standard assumptions of liberal constitutional theory, is not the concentration of power, but the dispersion of power into the hands of many tyrants. The general form of such arguments is that the greatest threat to political liberty in republics is a kind of “monstrous government,” in which a multitude of quasi-independent magistrates rule tyrannically — with tyranny classically understood as acting arbitrarily or acting for private good rather than the common good. Of course arguments of this kind have to specify the conditions under which the concern about plural tyranny does or does not hold. But the genre of argument is significant, because it turns on its head many of the assumptions of current debates over authority, liberty, tyranny, and constitutionalism.

Here, I want to note that such debates bear rather directly on the problem of the unitary executive, which in its pure form is the view that the President is vested with plenary authority to remove any officers exercising executive power and to direct their exercise of such power. The connection between plural tyranny and the unitary executive is the risk that, absent a unitary executive, a plethora of so-called “independent agencies” wielding executive power in particular domains may become something like an array of petty rulers in their particular domains. On this thought, republican liberty itself counsels that there should be a paramount executive with the power to control subordinate officers — a unitary executive. The hierarchical authority of the unitary executive, in other words, is not the worst threat to political liberty, at least on balance; rather the unitary executive is an indispensable safeguard of that liberty. The unity of the executive, the subordination of lesser officers to a single President who is the ultimate guardian of the constitutional order, embodies the unity of public authority in action and protects public freedom.

Such ideas appear in a muted and indirect form in the Supreme Court’s important reassertion of the unitary executive in 2020, Selia Law v. CFPB, but the Court’s main stress is on the democratic responsibility and accountability of the President. They also appear somewhat more clearly in Hamilton’s famous discussion of the executive in Federalist 70, in which he suggests that “energy in the executive” is “essential” to, inter alia, “the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” But this latter does not clearly speak to the relationship between the President and subordinate magistrates; it seems to be more directed at disorderly factions outside the government, among private citizens. And in general, Hamilton’s vision of executive power in The Federalist is not mainly concerned with the chief magistrate as a guarantor of liberty. Rather, as in Seila Law, it is that the elected President is responsible and accountable to the people as a whole, a different theme (although of course it is possible to connect that idea with the theme of plural tyranny as a threat to public liberty, depending upon how the relevant concepts are specified).

As far as I have been able to determine, the earliest clear assertion of the threat to public liberty posed by a plurality of officers who are not subordinate to a single head — the threat of a kind of plural tyranny from quasi-autonomous or independent civil magistrates — is to be found in the writings of “the celebrated Montesquieu,” as Madison describes him in Federalist 47. Now, there has long been a rather unhappy and confused debate in the American legal literature on the implications of Montesquieu’s views for the unitary executive. The confusion arises from two circumstances. First, the commentators usually discuss only Montesquieu’s best-known work, De L’Esprit des Lois (Of the Spirit of the Laws), whereas as I will show shortly, his most specific discussion of the unitary executive is found elsewhere in his writings. Second, it must be said, the discussion in De L’Esprit des Lois can be confusing if read with modern assumptions. There, Montesquieu defines the executive power as having two branches — “executive power over the things depending on the right of nations, and executive power over the things depending on civil right” — and begins his discussion by equating the second subtype of executive power with the power of judging. Thus some commentators conclude Montesquieu does not speak clearly to the question of what we would today call issues surrounding executive power wielded by subordinate executive officials, such as administrative agencies, in non-judicial regulatory and civil matters. On the other hand, however, yet other commentators point out that in Montesquieu’s subsequent discussion, he seems to include “executing the public resolutions” as one of the functions of domestic executive power, and this points more directly to the modern sense. The result is a kind of stalemate — especially for those who draw upon Montesquieu’s writings solely as evidence of the putative original understanding of the constitutional scheme.

If, however, we broaden our view beyond this unprofitable parsing of the originalist significance of De L’Esprit des Lois for the unitary executive, it turns out that Montesquieu does give us a specific argument about the relationship between the chief magistrate and subordinate officers, an argument in which he makes clear that the authority of a single chief magistrate over the subordinates is a necessary safeguard of public liberty against plural tyranny. That argument is to be found in Montesquieu’s reflections in a series of notebooks that are conventionally collected under the title of Mes Pensées (My Thoughts).¹ Those reflections were mostly unpublished in his lifetime, although some of the entries were published as fragments, and the ideas they embody percolated outwards from the salons of Paris to the larger Anglo-French intellectual world, on both sides of the Atlantic. As we will see, Federalist 20 offers a distinct echo of Montesquieu’s analysis.

For the modern originalist, of course, it matters that the Pensées as such were unknown to the founding generation. But I am not here offering an originalist argument. Instead I am exploring a non-originalist argument about the real nature and enduring principles of well-functioning republican constitutionalism, which our own particular instantiation of republican constitutionalism can and should be interpreted to reflect if fairly possible. Ironically enough, as I have pointed out before in drawing on recent work by legal historians, this sort of argument is in another sense more authentically originalist, because the framers themselves understood their enterprise of constitution-making as in part interpretive, in a way that has been widely forgotten today — as an effort to discern the real and enduring principles of the republican form of government and specify them in our law, rather than solely as a willful creation of a new institutional blueprint ex nihilo. As one historian puts it, founding-era Americans agreed that “[t]he Constitution did not simply mean what its language said; its meaning might change depending on the kind of polity it happened to represent.” After all, the “Republican Form of Government” clause necessarily assumes that there really is a republican form of government with essential features, over and above whatever institutional arrangements state law provides.

Montesquieu’s argument in the Pensées is conducted by an analysis of the pathologies of the Dutch Republic of the 18th century — also a subject of enormous interest to the framers, frequently discussed by them in the framing debates, and most famously the subject of the whole Federalist 20. Although the history of the Dutch Republic in the 18th century is hideously complex, the essential point is that the turbulent republic sometimes had and sometimes did not have a stadholder (or stadtholder), a chief executive magistrate who was also the captain-general of the armed forces and who held an array of other authorities. After 1747, the stadholder became a hereditary office vested in the House of Orange-Nassau.²

Montesquieu’s striking argument is that in the periods when the Dutch Republic lacked a stadholder, it lacked political liberty, precisely because such a magistrate was necessary to keep subordinate civil magistrates in check. (Note that this argument is conceptually independent of how the stadholder comes to hold the office, whether by election, hereditary right, or other means; thus it is conceptually independent of arguments from responsibility and democratic accountability).

In Pensée 655, Montesquieu writes:

I said: ‘If there were no king in England, the English would be less free.’ This is proven by Holland, where the people have become more enslaved since there is no longer a stadholder; all the magistrates {of each city}, petty tyrants [emphasis added].³

The point made there is that in the absence of a superior chief magistrate, subordinate civil magistrates are empowered in a harmful way, becoming petty tyrants.⁴ Note that we have here a specific reference to subordinate civil magistrates and that, unlike in De L’Esprit des Lois, this is not solely a reference to subordinate magistrates exercising judicial power. It thus escapes the ambiguity that has stalemated the debates in the American legal literature.

The theme that the threat to liberty arises precisely from the autonomy or independence of subordinate magistrates is made more explicit in Pensée 751, where Montesquieu writes:

“Holland is no longer free since it no longer has a stadholder. In Holland, the magistrates are free. In England, they are enslaved as magistrates, but free as citizens. It is a bad thing when a magistrate is free as a magistrate, and this always happens if there is not some ordering and moderating power [emphasis added].⁵

The striking thought common to these Pensées is that there is a kind of tradeoff in constitutionalism, between the “slavery” of magistrates and the liberty of the citizens, or conversely between the slavery of citizens and the freedom of magistrates. Where magistrates are free, in the sense of independent or autonomous from the “ordering and moderating power” at the head of the state, they enjoy a kind of dispersed power, even a plural petty tyranny, that poses a threat to the public liberty of the citizens they regulate. Conversely, when magistrates are “enslaved” in their official capacities by subordination to a stadholder, the people are most free.⁶

That this argument has been overlooked may result not only from its being found in the Pensées rather than Montesquieu’s better-known work, but from a perennial confusion about the relationship between two distinct constitutional ideas: on the one hand, the unitary executive, and on the other the separation of powers, famously championed (in a certain form) by Montesquieu. As I have discussed elsewhere, the unitary executive is not at all inconsistent with the separation of powers. The unitary executive thesis concerns only the internal hierarchy of authority within the executive power, the vertical allocation of authority between the chief magistrate and subordinate executive magistrates, rather than the substantive scope and incidents of executive power or the horizontal relationship among different branches of government, wielding different powers. Thus the unitary executive is entirely consistent with a commitment to the separation of powers.⁷

Of course Montesquieu does not speak directly to the interpretation of the specific positive texts of our Constitution, which did not exist until some thirty-five years after his death. But if we take those texts, as the framers did, as attempts to instantiate and embody a “republican form of government” resting on real and enduring principles, which they should be interpreted to embody where possible, we may do well to heed Montesquieu’s concern that the independence of executive magistrates from the head of the executive branch, the ultimate guardian of the constitutional order, is itself a threat to republican liberty.

1. I cite here the famous edition of the Pensées by Louis Desgraves, Editions Robert Laffont (Paris 1991). For the background and history of we call today the Pensées, see this overview by Catherine Volpilhac-Auger in the Dictionnaire Montesquieu. The best English translation, used here (with minor changes), is Montesquieu: My Thoughts (translated and edited by Henry C. Clark, 2012).

2. The so-called “First Stadholderless Period” occurred in 1651-72, and the “Second Stadholderless Period” in 1702-47 — the latter period being the one during which Montesquieu composed his Pensées. A major complication, which I have ignored in the text because the sources I discuss largely ignore it as well, is that each of the provinces of the United Netherlands could appoint their own stadholder, but the same stadholder could and often did hold appointments from more than one province.

3. « Je disais: S’il n’y avait pas de roi en Angleterre, les Anglais seraient moins libres. Cela se prouve par la Hollande, où les peuples sont plus dans l’esclavage depuis qu’il n’y a plus de stathouder : tous les magistrats [de chaque ville], de petits tyrans. » (Desgraves p. 330).

4. It is not surprising here that Montesquieu makes his point with reference both to “England” and “Holland” (a synecdoche for the larger United Provinces of the Netherlands), even though England was conventionally classed as a monarchy and Holland as a republic. Montesquieu thought that England was “a nation in which the republic hides itself under the form of a monarchy (une nation où la république se cache sous la forme de la monarchie).” See De L’Esprit Des Lois V.19 and Édouard Laboulaye’s note thereto, which explicitly glosses this passage as a reference to England. See also this excellent discussion by Philippe Raynaud, which agrees with that interpretation.

A similar theme appears in Pensée 1550, where Montesquieu discusses the Venetian quasi-republic, with its Doge elected for life:

The leader of a republic is a civil magistrate. Chance and necessity gave Holland a military leader {stadholder}, and she did great things. The Republic of Venice, with its civil leader from the hereditary nobility, cannot but fall into languor; the Grand Council is an assembly of civil tyrants [emphasis added]; they cannot be great men, and they prevent others from becoming so.

«Le chef des républiques est un magistrat civil. Le hasard et la nécessité donna un chef militaire à la Hollande : et elle fit de grandes choses. La République de Venise, avec le chef civil d’une noblesse héréditaire, ne peut quE tomber dans la langueur : le Grand Conseil est une assemblée de tyrans civils; ils ne peuvent pas être de grands hommes, et ils empêchent les autres de le devenir.»

Discussion of the Venetian case would take us too far afield, however.

5. « La Hollande n’est plus libre depuis qu’elle n’a plus de stathouder. En Hollande, les magistrats sont libres. En Angeleterre, ils sont esclaves comme magistrats, et libres comme citoyens. C’est le mal lorsqu’un magistrat est libre comme magistrat, et cela arrive toujours s’il n’y a quelque puissance réglante et tempérante. » (Desgraves p. 342).

6. Although Federalist 20 does not speak directly to the relationship between the chief magistrate and executive subordinates in a national bureaucracy — due to the structure of governance in the Dutch Republic of the 18th century, in which for the most part domestic governance and law enforcement occurred through provincial magistrates — Publius nonetheless picks up similar themes of the stadholder as the guardian against disunion and excessive fragmentation of power. Publius observes that:

[W]ithout [the stadholder’s] influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. “Under such a government,’‘ says the Abbe Mably, “the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder.”

To be sure, Federalist 20 is in part less sanguine about the stadholder than is Montesquieu, referring obscurely to the possibility of “calamities” produced by the stadholdership; but it must also be said that the passage at that point seems to confuse the institution of the stadholder with the government of the States-General, the legislative assembly.

7. This point holds even as to the exercise of adjudicative powers by subordinate officials within the executive branch, which poses no issue even on Montesquieu’s conception of the separation of powers. The Supreme Court has repeatedly told us that both regulation and adjudication, in the sense of the application of a governing legal standard to facts, are instances of the exercise of “executive power” when administrative agencies act to implement statutory grants of authority.