Checks and Balances

Checks and balances is a system of constitutional provisions to connect and comingle powers and functions among the branches of government. Each branch (legislative, executive, and judicial) has a partial share in the powers and functions of the others, which enables a mutual exercise of checks against abuses of power. The systematic interaction of the three branches also disables the concentration of power in a single branch. The system of checks and balances, therefore, promotes the limitation of government, the protection of liberty, and the prevention of tyranny.

ORIGINS IN FIRST STATE CONSTITUTIONS

The makers of America's first state constitutions were wary of strong executive power. These former subjects of British colonial governments had known executive tyranny. So the executive authority in their newly created state governments was weak, involving little more than administration of laws enacted by majority vote of the popularly elected legislators. Strict separation of powers between the branches of government was the constitutional ideal; the reality was legislative supremacy.

The Virginia Constitution of 1776, for example, declared the branches of government to be forever separate and distinct. Neither the executive nor the judicial branches could constitutionally check powers of the legislature. Thus “all the powers of government, legislative, executive, and judiciary, result to the legislative body,” said Thomas Jefferson in his Notes on the State of Virginia in 1781 ( Vile 1998, 167 ).

Many citizens in several states turned against constitutions that specified strict separation of powers but failed to prevent popularly elected legislators from dominating the government. Critics recognized that the executive was insufficiently empowered and the legislature insufficiently limited. And they realized that the lack of constitutional barriers, to keep each branch in its proper place, could lead to tyranny by a majority faction in the legislature. As Jefferson put it, “an elective despotism was not the government we fought for” ( Conkin 1974, 151 ).

Constitutional reformers proposed complex mixtures of powers to achieve balance among the branches of government and resolve problems of legislative supremacy. The 1780 Massachusetts Constitution became the leading example of checks and balances conjoined with separation of powers. This new scheme influenced subsequent revisions of several state constitutions and the making of new frames of government in other states, such as the New Hampshire Constitution of 1784 and the Pennsylvania Constitution of 1790.

Vile 1998, 163 ).

The Massachusetts Constitution of 1780 featured a popularly elected bicameral legislature. The two legislative houses, however, represented interests of different socioeconomic groups. The Senate or upper house stood for wealthier and higher status individuals and the House of Representatives for those of lower socioeconomic levels. The two interactive parts of the law making branch were supposed to check and balance each other, and thereby to obstruct legislation that benefited certain interests while subordinating or excluding others. Thus the legislative process could be turned away from tyranny and toward cooperation and compromise in behalf of common interests.

A popularly elected governor could veto laws enacted by majority vote in both houses of the legislature. But this rejection could be reversed by a two-thirds vote of members in both houses of the law making branch. The executive appointed members of an independent judicial branch, protected from direct political control by lifetime tenure, on condition of good behavior. But the other branches could impeach and remove them from office for malfeasance.

CHECKS AND BALANCES IN THE US CONSTITUTION

The Massachusetts Constitution influenced the Framers of the United States Constitution more than any other state constitution. Unlike the Massachusetts model, however, checks and balances in the federal Constitution were not tied to the social and economic statuses of various groups. Instead, the system was geared to the separate branches of government, each one deriving its authority, directly or indirectly, from the people, according to the principle of popular sovereignty.

Alexander Hamilton and James Madison explained and justified the unique American theory of checks and balances in several papers of The Federalist, published in 1788. Madison began with an affirmation of separated powers in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny” ( Rossiter 2003, 298 ). In Federalist No. 48, however, Madison asserted: “unless these departments be so far connected and blended as to give to each a constitutional control of the others, the degree of separation … essential to a free government can never in practice be duly maintained” ( Rossiter 2003, 305 ). After a lengthy critical review of America's first state constitutions, Madison concluded: “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands” ( Rossiter 2003, 310 ).

In the 51st paper of The Federalist, Madison made the case for complex interactions between separate branches of government, which permeated the 1787 Constitution. He said: “the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition” ( Rossiter 2003, 318-19 ). He noted, however, that in a republican form of government, “the legislative authority necessarily predominates” ( 2003, 319 ). So the Framers constructed formidable constitutional obstacles against legislative abuses of power.

Bicameralism, the division of the Congress into two parts, is a primary barrier against an unbridled legislature. Each legislative department, the Senate and House of Representatives, can check the other to prevent an overreach of legislative power. The congressional rules and procedures, based on Article I of the Constitution, require deliberation to reconcile different interests and achieve the majority vote necessary for enactment of law.

Both the executive and judicial branches can check the legislature to protect their integrity and authority, and to guard the public interest. The president, for example, can veto laws enacted by Congress. And the Supreme Court can declare acts of Congress unconstitutional. This unspecified power of judicial review, derived from provisions in Articles III and VI of the Constitution, was explained and justified by Hamilton in the 78th paper of The Federalist. The independence of the judiciary is guaranteed by lifetime tenure of office on good behavior and denial of congressional power to reduce the salaries paid to judges. These constitutional provisions in Article III, Section 1 shield judges from partisan pressure by the political branches.

The preceding examples, among several others in Articles I, II, and III of the Constitution, demonstrate the prominence of the legislature in the Framers' complex design to check misuse of powers by any branch of government. “If one counts up all of the checks, and considers their implications, it becomes clear that the primary result of the system of checks was to permit the legislature to keep a leash on the other two branches,” says Donald Lutz in his insightful commentary on the United States Constitution ( 1990, 273 ).

The Constitution's Framers linked their scheme of checks with carefully crafted mechanisms for the balance of powers ( see Lutz 1990, 274–75 ). One type of balance pertains to different terms of office for legislators and the president. Consider the terms of office and schedules of election for members of Congress. The tenure of office is two years for representatives and six years for senators. The entire membership of the House of Representatives faces reelection or retirement biennially. By contrast, the election cycle for the Senate requires only one-third of the members to stand for election every two years. These rules make it difficult for a political party to win a majority of seats of both houses of Congress in a single biennial election. It may take two or even three election cycles for this to happen.

The president's four-year term is another factor in this political equation. If the president's ideas conflict with those of a congressional majority, he or she may reject legislation with a veto, which can be overturned only by a supermajority in both branches of Congress. Thus significant changes in public policy may be delayed until another election yields a congruence of interests in the legislative and executive branches. “Like a clock balance,” says Lutz, “this constitutional balance keeps the system moving at a more or less regular speed that cannot be hurried” ( 1990, 274 ). It encourages deliberation and impedes imprudence in governance.




Checks and balances in the US government.





Checks and balances in the US government.
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The various and diverse interests, represented by different branches of officeholders, are likely to obstruct domination of government by a majority party or faction with narrow or extreme interests. Instead, representatives of contrasting and conflicting points of view are elected to positions in different parts of the government. Thus legislative decisions, which require a majority vote in the bicameral Congress and approval by the president, are likely to combine the different interests of diverse coalitions of citizens. Together, these balances bring about “a process that moves forward only in a steady, deliberative fashion” ( Lutz 1990, 275 ). Thus arbitrary and capricious decisions can be deterred and avoided.

The Constitution's Framers constructed checks and balances to ensure majority rule and prevent majority tyranny, an ever-present threat in a democratic republic. Their assumptions about human nature undergird and justify the system. In Federalist No. 51, Madison wrote, “It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature?” ( Rossiter 2003, 319 ). The Framers desired limited government because they feared the consequences of unlimited power. They strongly believed that, given the imperfect nature of human beings, no one can be trusted to use absolute power temperately and prudently.

CHECKS AND BALANCES IN AMERICAN GOVERNANCE

For more than 225 years, checks and balances has been a core principle of the federal and state constitutions. It is so thoroughly embedded in America's civic culture that the people take it for granted. Many Americans know little about the intricacies of checks and balances, but most have sensed the integral importance of this system in the federal Constitution, a revered symbol of common civic identity. This strong popular respect for the Constitution has contributed to the durability of checks and balances.

Furthermore, the checks and balances system has been an efficacious constitutional means to an end that Americans have always desired: security for individual liberty under the rule of law. The interactions between separate branches of government have blocked any one of them from usurping the functions and powers of the others. Furthermore, neither a majority nor minority faction has ever succeeded in accumulating enough power to impose governmental tyranny on the people.

The complex constitutional mechanisms have not only discouraged premature, careless, and dictatorial decisions; they have also enabled stable majority rule by representative government in a pluralistic and diverse society. As Hugh Heclo notes, “for important things to get done, very large coalitions are needed throughout the dispersed centers of power” ( 1994, 134 ). By forging combinations of diverse interests with common concerns, the system has generated majority support for landmark legislative and executive decisions.

The impressive durability and functionality of checks and balances has not precluded critical calls for change. From the 1890s through the early years of the twentieth century, leaders of the nascent Progressive movement promoted constitutional reform, especially reformulation of checks and balances. Progressives wanted government to become less limited and more empowered, and thereby to become a stronger force for the solution of severe economic and social problems. The Progressives also wanted more unity and coordination, and less division, between the branches of government in order to speed up responses to popular interests and needs. The Progressive reformers “rejected alike the checks and balances of The Federalist and the pure separation of powers that the Framers had opposed” ( Vile 1998, 301 ).

Constitutional criticisms of the early Progressives have echoed across the twentieth century and into the present. Their effect on public opinion has brought change, but not transformation, to the enduring system of check and balances. A major change, however, has been the rising power of the executive branch in relation to Congress.

The presidential power has risen in tandem with a growing bureaucracy to administer an ever-expanding agenda of federal government programs. Executive authority has also increased by the establishment of new administrative institutions, such as independent regulatory agencies, to control and prevent certain practices of private businesses and civil associations deemed detrimental to the public good. Administrative institutions of the executive branch are accountable to the president and Congress, but the legislative branch usually has not interfered with their operations.

Presidents have also augmented their authority through extensive use of executive orders to achieve policy objectives opposed by one or both branches of Congress. Instead of working within the checks and balances process, strong presidents have occasionally bypassed a recalcitrant legislative branch. Chief executives have justified such actions by voicing complaints against divided government and asserting their need to respond immediately to pressing public problems.

1998, 311 ). Constitutional traditionalists, such as George Carey, sporadically have opposed the steady expansion of executive power ( see Carey 1995, 53–55 ). This resistance became stronger and more strident during the presidencies of George W. Bush and Barack Obama. Defenders of checks and balances railed against instances of unilateral executive decision making in response to recalcitrant domestic and international problems.

Lee Hamilton, a former Democratic member of the House of Representatives, offered a nonpartisan and pragmatic reply to sharp controversy about the extraordinary exercise of executive power: “Yes, our system needs a strong presidency. But it also needs a strong Congress. We are best off as a nation when the two consult, interact, and work together as powerful branches…. Like our Founding Fathers, we should be skeptical of the concentration of power” ( 2014, 1–2 ).

Checks and balances in American governance today is not a replica of the Framers' constitutional model. But it remains a functional element of federal and state constitutions. It still can be an instrument for preserving individual liberty and preventing governmental tyranny. The people will keep checks and balances at the core of governance so long as they cherish the constitutional values it protects.

SEE ALSO Adams, John ; Bicameralism ; British Constitution ; Consent ; Constitution ; Constitutional Government ; Constitutionalism ; Democracy ; Faction ; Federalist, The ; Governance ; Jefferson, Thomas ; Limited Government ; Madison, James ; Majority Rule ; Majority Tyranny ; Massachusetts Constitution, 1780 ; Mixed Regime ; Pennsylvania Constitution, 1776 ; Popular Sovereignty ; Republic ; Republicanism ; Rule of Law ; Separation of Powers ; Virginia Declaration of Rights and Constitution, 1776 .

BIBLIOGRAPHY

Carey, George W. In Defense of the Constitution. Indianapolis, IN: Liberty Fund, 1995.

Conkin, Paul K. Self-Evident Truths: Being a Discourse on the Origins and Development of the First Principles of American Government. Bloomington: Indiana University Press, 1974.

Hamilton, Lee. “There's an Alternative to the Imperial Presidency.” The Center on Congress at Indiana University. February 19, 2014. http://congress.indiana.edu/theres-alternative-the-imperial-presidency .

Heclo, Hugh. “What Has Happened to the Separation of Powers?” In Separation of Powers and Good Government, edited by Bradford P. Wilson and Peter W. Schramm. Lanham, MD: Rowman & Littlefield, 1994.

Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.

Lutz, Donald S. “The United States Constitution, 1787: A Commentary.” In Roots of the Republic: American Founding Documents Interpreted, edited by Stephen L. Schechter. Madison, WI: Madison House, 1990.

Rossiter, Clinton, and Charles R. Kesler, eds. The Federalist Papers, by Alexander Hamilton, James Madison, and John Jay. (1788.) New York: Signet Classic, 2003.

Vile, M. J. C. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis, IN: Liberty Fund, 1998.

John J. Patrick
Indiana University