Part 1: What’s So Great About Our Constitution, Anyway?
Essay 18 – Checks and Balances
“But 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.”
– James Madison, Federalist 51
Now that we have covered the basic roles and powers that the different branches of government are given by the people in the Constitution, let’s take a look at the ways that the system of checks and balances were created in order to protect against one or all of the branches abusing or usurping powers.
1. The checks on the Legislative Branch:
The main check on the legislative branch is accountability through frequent elections. The people have a direct check on the legislative branch in this regard.
The Executive has the power of the veto. This is a check on the Legislative that the President can use if he believes that a law is unconstitutional or is not in the best interests of the country. Of course, Congress can override that veto with a 2/3 vote in both the House and the Senate, but that usually takes a very bipartisan political will to achieve.
The Judicial Branch also has a check on the Legislative with the ability to determine the constitutionality of laws.
There is also a check in the Legislative Branch upon itself. Separating the Legislative Branch into the House and the Senate (a bicameral legislature) was, in large part, intended to slow down the law making process. The Senate, with its different mode of selection, would be a safety valve to the directly elected House that may tend to act on current, fevered passions of the people without regard to the long-term ramifications. The Senate would slow things down and deliberate things more calmly.
2. The checks on the Executive Branch
With only a four year term and a term limit of two terms, the President has a check by elections.
While the President is Commander in Chief to our armed forces, only Congress can actually declare war.
While the President has the power to nominate and appoint high level officers in government, including justices of the Supreme Court and the Inferior Courts, he cannot appoint without the consent of the Legislative Branch (the Senate).
While the President can veto legislation, congress can override that veto.
While the President has vast powers and leeway in the administration of government, congress does have the power of impeachment if the President abuses that power.
3. The checks on the Judicial Branch
Due to efforts to keep the Judicial Branch independent and non-political, the people don’t have a direct check on it through elections, although there is an indirect check through voting for President and the Senate, which determines who nominates, confirms, and appoints those to the Judicial Branch. In fact, the only direct check on the Judicial Branch is the power of impeachment that the Legislative Branch holds that can be used against justices that have abused their power in some way.
4. Checks on the federal government
Not only do we have checks within the 3 branches of government, but also between the federal and state level of government. One of the main checks on the power of the federal government is the Constitution itself. This provides the federal government ONLY those powers that are specifically enumerated in the Constitution.
A further check within the Constitution is the Bill of Rights (the first 10 amendments), which was included as a “double-check” to ensure certain rights were not tread upon.
Another check on the federal government was the original intent of the Senate to be a strong voice of the States in order to protect the balance of powers between them.
5. Checks on the state government
Just as there are checks between the branches of government at the federal level, there are similar checks between them at the state level. But as far as the federal government having a check on the state governments, one such check is that the Constitution guarantees that each state will have a republican form of government. The federal government also has the power to intervene when it appears that a state government is doing something that is unconstitutional.
Where we’ve gone wrong…
I’ve covered much of what’s gone wrong with our system of checks and balances in the “Where we’ve gone wrong…” sections of the previous three essays discussing the Legislative, Executive, and Judicial branches. I’d refer you back to those again as a refresher. That said, I’ll just recap here a bit on the specific checks and balances discussed above:
The check on the Legislative Branch of the election by the people has been tainted in a number of ways.
One of the big problems is that the two major parties have pretty much hijacked our electoral process, such that it’s near impossible to take out an incumbent during any election. Recent reelection rates for incumbents in Congress exceed 95%, even though the approval rating of Congress by the people is less than 15%! This is due to the political parties (the Republicans and Democrats) taking almost total control of the process and putting so much money and support towards incumbents that it is near impossible for anyone to compete against them. This adversely and dramatically limits the accountability and the check in the system of frequent elections by the people.
The people have, therefore, lost faith in the system and feel helpless.
The reason that the major parties can do this is due to the consolidated power that has been shifted to the centralized federal government. Where you have consolidated power, you will find consolidated corruption and money trying to influence that power.
And once again, I will mention the 17th Amendment. This amendment changed the way the Senate was selected to that of a direct, popular election…the same as the House. This resulted in the Senate also being directly motivated by the current passions of the people and removes the intended check on itself.
As with the Legislative Branch, the check that elections provide on the Executive has the same type of problems with the two major parties manipulating things to provide us with choices that most people do not want.
With the primary system that the parties have created and control, the most qualified and most virtuous among us are largely prevented from rising to the top to give the people a good choice. Again, the people have lost faith in this system.
The check on the Executive in making war has largely been diminished as Congress has often looked the other way as the Executive militarily attacks other countries without the declaration of war from Congress.
As for the check on appointments from the Executive (the requirement that the Senate confirms them), the check is still there, but it has been so politicized that it has largely been rendered ineffective. The Senate rules have been changed so much that if the party of the President is in power, it is now simply a rubber-stamp process for whatever politically-motivated nomination the President makes. If the party of the President is not in power, the opposite occurs.
The checks on the President of the veto power and of impeachment are also diminished greatly due to the immense division of the major party politics. Obtaining a large enough majority in congress to make a veto override or an impeachment successful is near impossible, leaving those checks ineffective and essentially ignored by the President in any consideration of controlling his actions.
Being that the real only check on the Judicial Branch is the threat of impeachment for any wrong-doing, this check also has very little strength. Even though there have been many corrupt, incompetent, and blatantly political Supreme Court justices, there has never been any that have been removed from office through impeachment. Therefore, the Judicial Branch effectively operates unchecked while enjoying no accountability of elections with lifetime appointments.
The checks on the federal government from the states have likewise been nearly eliminated. First, with the effect that the 17th Amendment had on the Senate and the states losing their only real voice in the federal government, the federal government was able to usurp much of the powers that rightly belong to the states.
Also, due to the Supreme Court operating in an unchecked manner, they have been able to make very dubious interpretations of the Constitution such that the federal government has been allowed to assume way more power than the Constitution actually enumerates.
Lastly, the checks on the state are greatly strengthened from the federal government assuming so much power. The states can’t really do much of anything without approval from the federal government.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 19 – Slavery
To view the previous essay in the series, click this link: Essay 17- The Judiciary
To view the next essay in the series, click this link: Essay 19- Slavery