History and Principles
Checks and Balances refers to elements of our Constitutional government that are intended to distribute and inhibit or restrain political power. The concerns which these mechanisms were intended to address are embodied in an aphorism contained in the Federalist Papers (51, attributed to James Madison):
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
The principles underlying the concerns of the founders were multiple. Perhaps the most fundamental of these was the supreme importance of liberty—primarily individual liberty—the motivation behind the American Revolution which preceded the founding of the new nation. That revolution was a reaction to the perceived tyranny of the English monarchy and Parliament in administering their American colonies, politically and economically. This history predisposed the founders to establish a limited government, with enumerated powers distributed among the various branches.
Beyond the principles of liberty and limited government, there were a number of other considerations that called for restraints of power. Because the Constitution created a federation of formerly colonial states, there was strong support for maintaining a balance of powers between what had been sovereign states and a new national government. Secondly, the intended form of the new government was a republic—one with democratic characteristics, but first and foremost a government by elected representatives rather than a pure democracy. As we shall see, many of the checks and balances incorporated in the Constitution and its amendments were intended to fortify these two principles.
Checks and balances were also employed to address two theoretical concerns—the rule of law and the ‘tyranny of the majority.’ In the case of the former, a government of laws rather than of men required safeguards limiting both executive and legislative power to prevent its concentration in too few hands. As we shall see, such institutions as a bicameral legislature (House and Senate), Congressional oversight of executive agencies, and judicial review were designed to balance the primary power of the legislative authority. With regard to minority rights, other checks and balances such as the first ten amendments to the Constitution (known as the Bill of Rights) were intended to protect the ability of minority factions to participate in the political process even when outvoted.
Separation of Powers—the primus inter pares*
In the Constitution, after a very short Preamble (“We, the People….”), Articles I, II and III prescribe the form and powers of the three primary branches of the new government—legislative, executive and judicial. Article I is twice as long as the next section, which in turn is twice the length of the third, perhaps indicating some degree of rank among them. Taken as a whole, however, it is clear that these powers were intended to be countervailing, providing each of the branches with enough authority to prevent the other two from becoming dictatorial or able to act unilaterally with no opposing force, review or oversight. This arrangement, commonly referred to as the separation of powers, is the essence of the checks-and-balances principle, the root of its flourishing and efficacy.
*Latin, first among equals
While the concept of separation of powers (or ‘mixed government’) can be traced as far back as Aristotle and Plato (4th century BC), it is most strongly associated with the Greek statesman and historian Polybius (2nd century BC). His outline of the ‘mixed regime’ postulated the ideal government to be composed of elements of monarchy (an individual emperor), aristocracy (the elite, an oligarchy) and democracy (the people, the masses). Two millennia later, Enlightenment political theorists John Locke (Two Treatises of Government, 1689-90) and the Baron de Montesquieu (The Spirit of the Laws, 1748) were influenced by the Histories of Polybius, but further refined his concepts by framing the separation of powers among the executive (monarch or other leader), legislature (political elite) and judiciary. These two works were well known to the members of the Constitutional convention, in particular the authors of the Federalist Papers (Madison, Hamilton and Jay, under the collective pseudonym Publius), which explicated the convention’s outcome so as to persuade the states to ratify it. Separation of powers was central to their argument, in particular that the new, federal government would not supersede the existing powers and prerogatives of those states.
Checks & Balances in American Politics
In the American system of government, restraints on power may be applied to an individual office (e.g., the President), to a group or collective (the States), as well as the body politic as a whole (the People). Most often, however, they are meant to limit the power of any single branch of government (legislative, executive, judicial) to act unilaterally in direct opposition to the other branches. They also serve to balance these powers and restrain the ‘temporary passions’ of political movements or ideologies.
- Restraints on the Legislature
–a bicameral Congress (House and Senate), which requires all legislation to be agreed by both houses via the reconciliation process
–the Presidential veto, requiring a two-thirds supermajority in the Congress to override
–judicial review, the power of the courts—the Supreme Court in particular—to rule on the constitutionality of legislation
- Restraints on the Executive
–Congressional oversight of executive agencies
–Senate confirmation of executive officers
–power to declare war limited to Congress only
–‘the power of the purse’, i.e., all revenues raised (taxes, tariffs, etc.) and expenditures must be authorized by the Congress, with the bills originating in the House
–impeachment, or removal from office, effected in the House and tried in the Senate
–Senate ratification (by a two-thirds supermajority) of treaties proposed by the Executive
- Restraints on the Judiciary
–legal precedent (although this is self-imposed and subject to overrule)
–nomination of Federal judges by the Executive and confirmation by the Senate
–Constitutional amendments, proposed by convention of the States or by Congress, requiring ratification by a three-quarters supermajority of state legislatures
–impeachment, or removal from office by the Congress
IV. General Checks & Balances
–the President as Commander-in-Chief, with Congressional oversight
–limited terms of office, with exceptions for judges “during good behavior”
–civil suits for “the redress of grievances,” grounded in the 1st Amendment right of assembly
–the electoral college, which limits the power of the larger states in Presidential elections
–enumerated powers in the Constitution
–the Bill of Rights, the first ten amendments to the Constitution, which specified limits on the Federal government’s ability to curtail the liberties of the People
The numerous and overlapping provisions for checks and balances in the Constitution were a response to the central conundrum contained in James Madison’s aphorism quoted at the beginning of this paper. While setting out to limit and balance the powers of the main branches, the framers were also acutely aware of the necessity of empowering the new government with sufficient authority to succeed in governing and to act forcefully on the world stage. In the Federalist Papers, the term used to connote this need was ‘energy.’ The emphasis in this regard was on the design of the Executive office, to provide it with the strength and ability to act expeditiously as both internal and external circumstances required, while precluding any tendency toward dictatorship.
The tension between placing limits on the exercise of power while at the same time preserving the ability to act forcefully led the framers of the Constitution, at various points, to take refuge in ambiguities and omissions. This allowed them to avoid controversial issues that might have prevented ratification, in the hope that any such conflict could be kicked down the road, to be resolved by future events. As the country learned over the subsequent seventy-five years, in the instance of an issue like slavery, this approach stored up an explosive trove of trouble, requiring the equivalent of a second American revolution to preserve the Union. But without ratification, there would have been no Union to preserve.
Among the influential leaders of the various colonial states, there was a wide spectrum of thought on just how ‘energetic’ the new federal government should be. In the twentieth century, the issue came to be framed—for and against—as ‘activist’ government, but at root, it is the same problem. Commencing with the rise of the progressive movement around the end of the nineteenth century, restraints on the powers of the national government were perceived to be obstructions to, well, progress, whatever that chimera was meant to entail. This line of thought inevitably led to a search for ways to overcome the inhibitions established in the Constitution. Much of the dissatisfaction was economic in nature, but once unleashed (most disruptively by the crisis of the Great Depression of the 1930’s), progressive politics became a ‘long march’ against Constitutional limits, an ongoing guerrilla war to nullify them, a struggle embodied in the concept of a living Constitution. Upon reflection, it becomes apparent that a ‘living Constitution’ is really no constitutional bedrock at all, but more an exercise in making it up as you go along, designed to move away from the original intent of our founding document while avoiding the long and tedious effort to change it by means of the amendment process.
One other result of the Checks-and-Balances framework worth noting was the intentional brake on the power of the judiciary. The underlying concern was that this branch—the one not subject to the electorate nor to the incursions of the other two branches, as well as the only one with lifetime appointments—could not be allowed to act unilaterally, with no limits to its purview. But it must be admitted that, in practice, such limits as have developed over the centuries have been mostly self-imposed, in the interest of maintaining the perception of the courts as impartial and disinterested. Perhaps this standard has been diluted as political partisanship in the nation has grown, but at the least, most observers still pay it lip service.
The principle of Checks-and-Balances as applied in the U.S. Constitution has been perceived in multiple ways, some laudatory, some pejorative. It is generally agreed that those provisions are conservative in nature and effect, and that this was intentionally so. There were few, if any, members of the Constitutional convention who would be considered as one of them by adherents of the progressive movement, whatever the era.
But like so many of the protections—of liberty, of the minority, of the prerogatives of the branches of government—built into the Constitution, Checks-and-Balances were vital to ensuring that a diverse and widely dispersed citizenry, with a variety of interests at times in conflict, could come together to form a unitary government without losing their freedom, their political representation, or the opportunity to thrive economically. As the longevity of the Constitutional regime attests, we have been fortunate to have these protections, even when they can be obstructive. After all, one man’s obstruction can be another man’s safeguard.