“The
powers of government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.” Thomas Jefferson
The phrase checks and balances has become so
commonplace, it is often spoken as if it were a single word, but in the
eighteen century, the phrase represented distinctly different concepts. John
Adams may have been the first to put the words together in his 1787 publication,
A Defense of the Constitutions of
Government of the United States, but balances
and checks is the phrase used in The Federalist, and that is the sequence Madison would have thought appropriate.
First balance powers between the branches of government, and then place checks
on those powers so they may not be abused.
Political power
frightened the Founders. They believed that only by limiting government powers
could liberty survive the natural tendency of man to dictate the habits of
other men. The separation and balancing of power with checks was designed to
prevent a majority coalition from taking control of the government. Each branch
was given defined powers, and then each of these powers was limited and checked
by another branch or entity. The system was purposely designed to slow
governmental actions enough to allow due deliberation.
The Constitutional
Convention looked at two different ways of defining national powers. They
debated whether to call out each power individually or, alternately, to list
restrictions on general powers. Basically they had to decide whether to write
down what the federal government could do or what the federal government could
not do.
Because they feared
they might forget some crucial restrictions, the delegates decided it was safer
to define powers, instead of limitations. Besides, monarchies had general
power, and since they had just escaped a monarchy, they would give their
national government only defined powers. The Framers’ intent remains clear: if
a specific power was not expressly listed in the Constitution, then that power
remained with the States or with the people. They decided this was the safer
route because if they made an error, it would leave the authority closer to the
people.
The assignment of
powers to the three branches was not perfunctory. The delegates argued
incessantly about this for over four months. For example, once the Great
Compromise altered the composition and selection of the Senate, the delegates
revisited every branch and re-balanced the powers between them. In fact, a
stronger Senate allowed them to increase the powers of the executive.
The delegates also
decided to choose members of the national government by different means, so it
would be difficult for one faction to gain control over the government. The
House of Representatives would be elected directly by the people, the state
legislatures elected Senators, the president would be chosen by an Electoral
College, and the Supreme Court would be appointed by the executive and
confirmed by the Senate. As an additional safety measure, they set different
terms for the president, senators, representatives, and the judiciary.
Next, Install Speed Bumps
To a degree, each
branch operates in slight fear that another branch will chastise or even
overrule its actions. Madison wrote in Federalist 51, “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. The provision for defense must in this, as in all other cases, be made
commensurate to the danger of attack. Ambition must be made to counteract
ambition.”
In Madison’s opinion, liberty
could only be protected by power restraining power. The Constitution doesn’t
contain any language preserving the boundaries of the three branches. It is up
to the three branches to defend their independence with their assigned powers.
States as a Check on the National
Government
The Framers did not
restrict the checks and balances concept to the three national branches. The
delegates to the Constitutional Convention intended the states to be a potent
check on the national government. They
included four provisions for this purpose:
Enumerated
powers, later reconfirmed by the First Congress and the states with the 10th
amendment
Senators
elected by state legislatures
Limited
national taxing authority
An
Electoral College to select the president
Today, Washington does
not consider the enumerated powers a constraint; Senators are popularly
elected; the 16th Amendment allows Congress to collect taxes on incomes, from whatever source derived, and the
Electoral College is under attack.
The Ultimate Check on the National
Government
The Founders intended
the ultimate check on the national government to be the people. John Adams
wrote, “There is a simple sense in which at every election the electorate hold
their representatives to account, and replace those who have failed to give
satisfaction. This fundamental check is, we might say, the essence of the
liberty to be found in representative government.”
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