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Message: 17th Principle--checks and balances should be adopted to prevent the abuse of
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17th
Principle
A system of checks and balances
should be adopted to prevent
the abuse of power.
Principle
A system of checks and balances
should be adopted to prevent
the abuse of power.
-
It must have been astonishing to John Adams to
discover that after he had sold the people on the separation
of powers doctrine, some of them wanted the separation to be
so complete that it would have made the system unworkable,
These people who took this puritanical view opposed the
adoption of the Constitution on the grounds that it did not
make the separation of power between the three departments
complete and absolute.
discover that after he had sold the people on the separation
of powers doctrine, some of them wanted the separation to be
so complete that it would have made the system unworkable,
These people who took this puritanical view opposed the
adoption of the Constitution on the grounds that it did not
make the separation of power between the three departments
complete and absolute.
-
They missed a most important factor in Montesquieu's
presentation. He said each of the departments was to be
separate in its functions, but subject to the checks of the
other two departments in case it became abusive in
performing those functions.
They missed a most important factor in Montesquieu's
presentation. He said each of the departments was to be
separate in its functions, but subject to the checks of the
other two departments in case it became abusive in
performing those functions.
-
James Madison Explains "Checks and Balances"
-
It is interesting that James Madison had to spend five
Federalist Papers (numbers 47 to 51) explaining that the
separation of powers between the executive, legislative, and
judicial departments should not be absolute, but should
make allowances for a built-in system of checks and
balances. He said the trick was to separate the powers and
then delicately lace them back together again as a balanced
unit.
It is interesting that James Madison had to spend five
Federalist Papers (numbers 47 to 51) explaining that the
separation of powers between the executive, legislative, and
judicial departments should not be absolute, but should
make allowances for a built-in system of checks and
balances. He said the trick was to separate the powers and
then delicately lace them back together again as a balanced
unit.
-
Madison conceded, however, that keeping the three
departments of government separated was fundamental to
the preservation of liberty. He wrote:
"The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, self
appointed, or elective, may justly be pronounced the
very definition of tyranny." (The Federalist Papers, No.
47, p. 301.)
Madison conceded, however, that keeping the three
departments of government separated was fundamental to
the preservation of liberty. He wrote:
"The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, self
appointed, or elective, may justly be pronounced the
very definition of tyranny." (The Federalist Papers, No.
47, p. 301.)
-
Madison then proceeded to explain how Montesquieu
recommended that the powers be separated as to function
but coordinated for the prevention of usurpation or abuse.
Note his opening tribute to Montesquieu:
"The oracle who is always consulted and cited on
this subject is the celebrated Montesquieu. If he be not
the author of this invaluable precept in the science of
politics, he has the merit at least of displaying and
recommending it most effectually to the attention of
mankind." (Ibid.)
Madison then proceeded to explain how Montesquieu
recommended that the powers be separated as to function
but coordinated for the prevention of usurpation or abuse.
Note his opening tribute to Montesquieu:
"The oracle who is always consulted and cited on
this subject is the celebrated Montesquieu. If he be not
the author of this invaluable precept in the science of
politics, he has the merit at least of displaying and
recommending it most effectually to the attention of
mankind." (Ibid.)
-
In the Federalist Papers, No. 47, Madison indicated that
even those states which demanded an absolute separation of
powers in the federal constitution employed a blending of
power in their own state constitutions. He pointed out that
just as those safeguards were necessary for the states, they
were equally important to include in the federal constitution.
In fact, he said:
"I shall undertake ... to show that unless these
departments be so far connected and blended as to give
each a constitutional control over the others, the degree
of separation which the maxim [of Montesquieu]
requires, as essential to a free government, can never in
practice be duly maintained." (The Federalist Papers, No.
48, p. 308.)
In the Federalist Papers, No. 47, Madison indicated that
even those states which demanded an absolute separation of
powers in the federal constitution employed a blending of
power in their own state constitutions. He pointed out that
just as those safeguards were necessary for the states, they
were equally important to include in the federal constitution.
In fact, he said:
"I shall undertake ... to show that unless these
departments be so far connected and blended as to give
each a constitutional control over the others, the degree
of separation which the maxim [of Montesquieu]
requires, as essential to a free government, can never in
practice be duly maintained." (The Federalist Papers, No.
48, p. 308.)
-
Blending Does Not Mean Usurping
-
Notice that the purpose of "checks and balances" is a
constitutional control in the hands of each department of
government to prevent any usurpation of power by another
department or abusive administration of the power granted
to it. This "blending" does not, therefore, intrude into the
legitimate functions of each of the departments. As Madison
explained it:
Notice that the purpose of "checks and balances" is a
constitutional control in the hands of each department of
government to prevent any usurpation of power by another
department or abusive administration of the power granted
to it. This "blending" does not, therefore, intrude into the
legitimate functions of each of the departments. As Madison
explained it:
-
"It is agreed on all sides that the powers properly
belonging to one of the departments ought not to be
directly and completely administered by either of the
other departments. It is equally evident that none of
them ought to possess, directly or indirectly, an
overruling influence over the others in the
administration of their respective powers. It will not be
denied that power is of an encroaching nature and that
it ought to be effectually restrained from passing the
limits assigned to it.... The next and most difficult task
is to provide some practical security for each, against
the invasion of the others." (Ibid.)
"It is agreed on all sides that the powers properly
belonging to one of the departments ought not to be
directly and completely administered by either of the
other departments. It is equally evident that none of
them ought to possess, directly or indirectly, an
overruling influence over the others in the
administration of their respective powers. It will not be
denied that power is of an encroaching nature and that
it ought to be effectually restrained from passing the
limits assigned to it.... The next and most difficult task
is to provide some practical security for each, against
the invasion of the others." (Ibid.)
-
Just how difficult this task turned out to be is
demonstrated in a number of problems which have arisen in
our own day. The failure to use the checks and balances
effectively has allowed the judiciary to create new laws (called
judicial legislation) by pretending to be merely interpreting
old ones. Failure to use the checks and balances has also
allowed the President to make thousands of new laws,
instead of Congress, by issuing executive orders. It has
allowed the federal government to invade the reserved rights
of the states on a massive scale. It has allowed the legislature
to impose taxes on the people never contemplated by the
Founders or the Constitution.
demonstrated in a number of problems which have arisen in
our own day. The failure to use the checks and balances
effectively has allowed the judiciary to create new laws (called
judicial legislation) by pretending to be merely interpreting
old ones. Failure to use the checks and balances has also
allowed the President to make thousands of new laws,
instead of Congress, by issuing executive orders. It has
allowed the federal government to invade the reserved rights
of the states on a massive scale. It has allowed the legislature
to impose taxes on the people never contemplated by the
Founders or the Constitution.
-
The whole spectrum of checks and balances needs to be
more thoroughly studied and more vigorously enforced.
Madison appropriately anticipated that "parchment barriers"
in the Constitution would not prevent usurpation. Each
department of government has the responsibility to rise up
and protect its prerogatives by exercising the checks and
balances which have been provided. At the same time, the
people have the responsibility to keep a closer watch on their
representatives and elect only those who will function within
Constitutional boundaries.
The whole spectrum of checks and balances needs to be
more thoroughly studied and more vigorously enforced.
Madison appropriately anticipated that "parchment barriers"
in the Constitution would not prevent usurpation. Each
department of government has the responsibility to rise up
and protect its prerogatives by exercising the checks and
balances which have been provided. At the same time, the
people have the responsibility to keep a closer watch on their
representatives and elect only those who will function within
Constitutional boundaries.
-
What the Founders finally devised is recognized as an
ingenious device when properly implemented. The fact that it
has sometimes fallen into neglect in recent times does not
detract from the fact that it is still the most effective way to
maintain the American eagle in the balanced center of the
political spectrum. The Constitution made the departments
separate as to their assigned function, but made them
dependent upon one another to be fully operative. As we
depicted in an earlier section of this book, the symbolic
American eagle has three heads, but they operate from one
neck. As a former Under-Secretary of State, J. Reuben Clark,
Jr., explained it:
ingenious device when properly implemented. The fact that it
has sometimes fallen into neglect in recent times does not
detract from the fact that it is still the most effective way to
maintain the American eagle in the balanced center of the
political spectrum. The Constitution made the departments
separate as to their assigned function, but made them
dependent upon one another to be fully operative. As we
depicted in an earlier section of this book, the symbolic
American eagle has three heads, but they operate from one
neck. As a former Under-Secretary of State, J. Reuben Clark,
Jr., explained it:
-
"The Framers ... separated the three functions of
government, and set each of them up as a separate
branch -- the legislative, the executive, and the judicial.
Each was wholly independent of the other. No one of
them might encroach upon the other. No one of them
might delegate its power to another.
"Yet by the Constitution, the different branches
were bound together, unified into an efficient, operating
whole. These branches stood together, supported one
another. While severally independent, they were at the
same time, mutually dependent. It is this union of
independence and dependence of these branches --
legislative, executive, and judicial -- and of the
governmental functions possessed by each of them, that
constitutes the marvelous genius of this unrivalled
document. The Framers had no direct guide in this
work, no historical governmental precedent upon which
to rely. As I see it, it was here that the divine inspiration
came. It was truly a miracle." (J. Reuben Clark, Stand
Fast by Our Constitution, Deseret Book Company, Salt
Lake City, 1973, pp. 147-148.)
"The Framers ... separated the three functions of
government, and set each of them up as a separate
branch -- the legislative, the executive, and the judicial.
Each was wholly independent of the other. No one of
them might encroach upon the other. No one of them
might delegate its power to another.
"Yet by the Constitution, the different branches
were bound together, unified into an efficient, operating
whole. These branches stood together, supported one
another. While severally independent, they were at the
same time, mutually dependent. It is this union of
independence and dependence of these branches --
legislative, executive, and judicial -- and of the
governmental functions possessed by each of them, that
constitutes the marvelous genius of this unrivalled
document. The Framers had no direct guide in this
work, no historical governmental precedent upon which
to rely. As I see it, it was here that the divine inspiration
came. It was truly a miracle." (J. Reuben Clark, Stand
Fast by Our Constitution, Deseret Book Company, Salt
Lake City, 1973, pp. 147-148.)
-
The Original Intent of the Founders
-
As it turned out, the American Founding Fathers
achieved a system of checks and balances far more complex
than those envisioned by Montesquieu. These included the
following provisions:
1. The House of Representatives serves as a check on the
Senate since no statute can become law without the
approval of the House.
2. At the same time the Senate (representing the
legislatures of the states before the 17th Amendment)
serves as a check on the House of Representatives
since no statute can become law without its approval.
3. A President can restrain both the House and the
Senate by using his veto to send back any bill not
meeting with his approval.
4. The Congress has, on the other hand, a check on the
President by being able to pass a bill over the
President's veto with a two-thirds majority of each
house.
5. The legislature also has a further check on the
President through its power of discrimination in
appropriating funds for the operation of the executive
branch.
6. The President must have the approval of the Senate in
filling important offices of the executive branch.
212
7. The President must also have the approval of the
Senate before any treaties with foreign nations can go
into effect.
8. The Congress has the authority to conduct
investigations of the executive branch to determine
whether or not funds are being properly expended and
the laws enforced.
9. The President has a certain amount of political
influence on the legislature by letting it be known that
he will not support the reelection of those who oppose
his program.
10. The executive branch also has a further check on the
Congress by using its discretionary powers in
establishing military bases, building dams, improving
navigable rivers, and building interstate highways so as
to favor those areas from which the President feels he
is getting support by their representatives.
11. The judiciary has a check on the legislature through its
authority to review all laws and determine their
constitutionality.
12. The Congress, on the other hand, has a restraining
power over the judiciary by having the constitutional
authority to restrict the extent of its jurisdiction.
13. The Congress also has the power to impeach any of the
judges who are guilty of treason, high crimes, or
misdemeanors.
14. The President also has a check on the judiciary by
having the power to nominate new judges subject to
the approval of the Senate.
15. The Congress has further restraining power over the
judiciary by having the control of appropriations for the
operation of the federal court system.
213
16. The Congress is able to initiate amendments to the
Constitution which, if approved by three-fourths of the
states, could seriously affect the operation of both the
executive and judicial branches.
17. The Congress, by joint resolution, can terminate
certain powers granted to the President (such as war
powers) without his consent.
18. The people have a check on their Congressmen every
two years; on their President every four years; and on
their Senators every six years.
As it turned out, the American Founding Fathers
achieved a system of checks and balances far more complex
than those envisioned by Montesquieu. These included the
following provisions:
1. The House of Representatives serves as a check on the
Senate since no statute can become law without the
approval of the House.
2. At the same time the Senate (representing the
legislatures of the states before the 17th Amendment)
serves as a check on the House of Representatives
since no statute can become law without its approval.
3. A President can restrain both the House and the
Senate by using his veto to send back any bill not
meeting with his approval.
4. The Congress has, on the other hand, a check on the
President by being able to pass a bill over the
President's veto with a two-thirds majority of each
house.
5. The legislature also has a further check on the
President through its power of discrimination in
appropriating funds for the operation of the executive
branch.
6. The President must have the approval of the Senate in
filling important offices of the executive branch.
212
7. The President must also have the approval of the
Senate before any treaties with foreign nations can go
into effect.
8. The Congress has the authority to conduct
investigations of the executive branch to determine
whether or not funds are being properly expended and
the laws enforced.
9. The President has a certain amount of political
influence on the legislature by letting it be known that
he will not support the reelection of those who oppose
his program.
10. The executive branch also has a further check on the
Congress by using its discretionary powers in
establishing military bases, building dams, improving
navigable rivers, and building interstate highways so as
to favor those areas from which the President feels he
is getting support by their representatives.
11. The judiciary has a check on the legislature through its
authority to review all laws and determine their
constitutionality.
12. The Congress, on the other hand, has a restraining
power over the judiciary by having the constitutional
authority to restrict the extent of its jurisdiction.
13. The Congress also has the power to impeach any of the
judges who are guilty of treason, high crimes, or
misdemeanors.
14. The President also has a check on the judiciary by
having the power to nominate new judges subject to
the approval of the Senate.
15. The Congress has further restraining power over the
judiciary by having the control of appropriations for the
operation of the federal court system.
213
16. The Congress is able to initiate amendments to the
Constitution which, if approved by three-fourths of the
states, could seriously affect the operation of both the
executive and judicial branches.
17. The Congress, by joint resolution, can terminate
certain powers granted to the President (such as war
powers) without his consent.
18. The people have a check on their Congressmen every
two years; on their President every four years; and on
their Senators every six years.
-
The Importance of Preserving
the Founders' System
the Founders' System
-
President Washington felt that the separation of powers
with its accompanying checks and balances was the genius
of the American system of government. The task was to
maintain it. In his Farewell Address he stated:
"It is important, likewise, that the habits of thinking
in a free country should inspire caution in those
entrusted with its administration to confine themselves
within their respective constitutional spheres, avoiding
in the exercise of the powers of one department to
encroach upon another.
President Washington felt that the separation of powers
with its accompanying checks and balances was the genius
of the American system of government. The task was to
maintain it. In his Farewell Address he stated:
"It is important, likewise, that the habits of thinking
in a free country should inspire caution in those
entrusted with its administration to confine themselves
within their respective constitutional spheres, avoiding
in the exercise of the powers of one department to
encroach upon another.
-
"The spirit of encroachment tends to consolidate the
powers of all the departments in one and thus to create,
whatever the form of government, a real despotism. A
just estimate of that love of power and proneness to
abuse it which predominates in the human heart is
sufficient to satisfy us of the truth of this position.
"The necessity of reciprocal checks in the exercise
of political power, by dividing and distributing it into
different depositories and constituting each the guardian
of the public weal against invasions by the others, has
been evinced by experiments ancient and modern, some
of them in our country and under our own eyes. To
preserve them must be as necessary as to institute
them. If, in the opinion of the people, the distribution or
modification of the constitutional powers be in any
particular wrong, let it be corrected by an amendment in
the way which the Constitution designates. But let there
be no change by usurpation; for though this, in one
instance, may be the instrument of good, it is the
customary weapon by which free governments are
destroyed." (Fitzpatrick, Writings of George Washington,
35:228.)
"The spirit of encroachment tends to consolidate the
powers of all the departments in one and thus to create,
whatever the form of government, a real despotism. A
just estimate of that love of power and proneness to
abuse it which predominates in the human heart is
sufficient to satisfy us of the truth of this position.
"The necessity of reciprocal checks in the exercise
of political power, by dividing and distributing it into
different depositories and constituting each the guardian
of the public weal against invasions by the others, has
been evinced by experiments ancient and modern, some
of them in our country and under our own eyes. To
preserve them must be as necessary as to institute
them. If, in the opinion of the people, the distribution or
modification of the constitutional powers be in any
particular wrong, let it be corrected by an amendment in
the way which the Constitution designates. But let there
be no change by usurpation; for though this, in one
instance, may be the instrument of good, it is the
customary weapon by which free governments are
destroyed." (Fitzpatrick, Writings of George Washington,
35:228.)
-
The Founders' Device for
"Peaceful" Self-Repair
"Peaceful" Self-Repair
-
During nearly two centuries that the Constitution has
been in operation, it has carried the nation through a series
of traumatic crises. Not the least of these have been those
occasions when some branch of government became
arrogantly officious in the administration of its assigned task
or flagrantly violated the restrictions which the Constitution
placed upon it. As President Washington indicated, there is a
tendency for some of this to occur continually, as is the case
in our own day, but when it reaches a point of genuine crisis
there is built-in Constitutional machinery to take care of it.
By way of contrast, we have scores of nations which
claim to have copied the United States Constitution, but
which failed to incorporate adequate checks and balances. In
those countries, the only remedy, when elected presidents
have suspended the constitution and used the army to stay
in power, has been to resort to machine guns and bombs to
oust the usurper. This occurs time after time. What the
Founders wished to achieve in the Constitution of 1787 was
machinery for the peaceful means of self-repair when the
system went out of balance.
During nearly two centuries that the Constitution has
been in operation, it has carried the nation through a series
of traumatic crises. Not the least of these have been those
occasions when some branch of government became
arrogantly officious in the administration of its assigned task
or flagrantly violated the restrictions which the Constitution
placed upon it. As President Washington indicated, there is a
tendency for some of this to occur continually, as is the case
in our own day, but when it reaches a point of genuine crisis
there is built-in Constitutional machinery to take care of it.
By way of contrast, we have scores of nations which
claim to have copied the United States Constitution, but
which failed to incorporate adequate checks and balances. In
those countries, the only remedy, when elected presidents
have suspended the constitution and used the army to stay
in power, has been to resort to machine guns and bombs to
oust the usurper. This occurs time after time. What the
Founders wished to achieve in the Constitution of 1787 was
machinery for the peaceful means of self-repair when the
system went out of balance.
-
Watergate
-
One of the most dramatic illustrations of the peaceful
transfer of power in a time of crisis was in connection with
the Watergate scandal. A President was found to have used
his high office for purposes which were beyond the scope of
his authority and outside the ramifications of legal conduct.
Under threat of impeachment, he resigned. At the time, he
was Commander-in-Chief of the Armed Services of the United
States. He made no attempt to use these military forces to
keep himself in power. In fact, under the American
Constitution, it would have been useless for him to have
attempted it. The transfer of power was made quietly and
peacefully once the issue came to a point of decision.
One of the most dramatic illustrations of the peaceful
transfer of power in a time of crisis was in connection with
the Watergate scandal. A President was found to have used
his high office for purposes which were beyond the scope of
his authority and outside the ramifications of legal conduct.
Under threat of impeachment, he resigned. At the time, he
was Commander-in-Chief of the Armed Services of the United
States. He made no attempt to use these military forces to
keep himself in power. In fact, under the American
Constitution, it would have been useless for him to have
attempted it. The transfer of power was made quietly and
peacefully once the issue came to a point of decision.
-
The Blessing of Domestic Tranquility
-
Some of us have had to travel or live in nations during a
time of turmoil and revolution. Even one such experience will
usually convince the most skeptical activist that there is
nothing to be gained and a great deal to be lost by resorting
to violence to bring about political change. Once a
constitution has been established and the machinery
developed for remedy or repair by peaceful means, this is the
most intelligent and satisfactory route to pursue. It requires
more patience, but given time, the results are more certain.
To solve problems by peaceful means was the primary
purpose of the United States Constitution.
Some of us have had to travel or live in nations during a
time of turmoil and revolution. Even one such experience will
usually convince the most skeptical activist that there is
nothing to be gained and a great deal to be lost by resorting
to violence to bring about political change. Once a
constitution has been established and the machinery
developed for remedy or repair by peaceful means, this is the
most intelligent and satisfactory route to pursue. It requires
more patience, but given time, the results are more certain.
To solve problems by peaceful means was the primary
purpose of the United States Constitution.
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