by James D. Best

“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, it was two 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 are not abused.

Power Corrupts, Absolute Power Corrupts Absolutely

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 balanced separation of power with checks was designed to prevent a majority coalition from taking control of the government. Each branch was given delineated 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.

Balancing Act

The Constitutional Convention looked at two different ways of defining national powers. They debated long and hard about 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 the powers, instead of the limitations. Besides, monarchies had general power, and since they had just escaped a monarchy, they would give their national government only delineated 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 can 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 Founders did not restrict the checks and balances concept to the three Federal 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

Unfortunately, few in Washington consider the enumerated powers a constraint; Senators are now 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.” Since this appears to be the last remaining effective check, we better user it wisely.