Montesquieu's Constitutional Legacies
MODERNITY IN QUESTION: MONTESQUIEU AND HIS LEGACY, Rebecca Kingston, ed., SUNY Press, Forthcoming
26 Pages Posted: 8 Apr 2008 Last revised: 22 Jul 2008
There is greater continuity than has often been recognized between the ancient constitutionalism of medieval institutions that could check early-modern monarchs, of particular liberties and jurisdictional patchworks, and the ostensibly rationalistic, uniform, and contractarian modern constitutionalism of written constitutional texts and judicial review. In this paper I dispute both the idea of a radical intellectual break between constitutionalism before and after the 1770s-90s, and the tightly-related claim that modern constitutions themselves necessarily represent radical institutional and legal breaks from their society's pasts, the clam that all that comes before a written constitution's enactment ought to be understood as so much prehistoric state of nature detritus. In this transition from ancient constitutionalism to modern - or, more precisely, in the transmission of ancient constitutionalism into modern - Montesquieu is the pivotal figure. In its reorganization and restatement of ancient constitutionalism, making it intellectually available to and respectable in an age of rationalist philosophes, in its account of the freedom available in modern commercial monarchies if only they remain moderate, and in its argument about what is needed to keep them moderate, The Spirit of the Laws makes a powerful if implicit normative argument about constitutionalism. And bringing this argument out into the open can help us to understand much about the constitutionalism that has been with us since the last quarter of the eighteenth century, much that is obscured by an overemphasis on modern constitutionalism's modernity, its rationalism and contractarianism.
Keywords: Montesquieu, constitutionalism, ancient constitution, social contract, 18th century, constitutional theory
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