James Madison Would Have Said Balanced And Checked – Guest Essayist: James D. Best
The phrase checks and balances has become so commonplace that it is often spoken as if it were a single word, but in the eighteen century, it was two distinct concepts. John Adams may have been the first to put the words checks and balances together in that order in his 1787 publication, A Defense of the Constitutions of Government of the United States of America, but balance and check is the phrase used in The Federalist, and that is the sequence James Madison would have thought appropriate. First, balance powers between the branches of government, and then check those powers so they are not abused.
In his voluminous Constitutional Convention notes, Madison recorded himself as saying that he “could not discover … any violation of the maxim which requires the great departments of power to be kept separate and distinct … If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the theory in the Constitution that each department ought to be separate and distinct, it was proposed to add a defensive power to each which should maintain the theory in practice.”
First balance power, then check with defensive powers. This was the big idea of the Constitutional Convention. The delegates believed that a limited government with dispersed and checked powers was the best protection against oppression. But was the concept valid? And if valid, was the concept an anachronism of the eighteenth century no longer relevant to modern times?
This big idea is both valid and timeless. James Madison, the Father of the Constitution, didn’t invent this notion, nor did any of the other Founders for that matter. Well before the convention, the Enlightenment held balanced and checked government as a key precept, and most of the delegates were devotees to the principle prior to arriving in Philadelphia. Mr. Madison, however, became its strongest advocate. Madison spent a year in advance of the convention studying government forms throughout history and became convinced of the rightness of the idea. It wasn’t as if he didn’t already have a good understanding. He graduated and did post-graduate work at Princeton University under the tutelage of the famed Reverend Doctor John Witherspoon.
Other delegates were similarly informed about government forms. In early America, college degrees were rare, yet twenty-nine delegates held college degrees and many others were self-educated in the classics and modern political thought. Almost all of the delegates were knowledgeable about Aristotle, Locke, Hume, and Montesquieu. Together, these learned men locked themselves in a closed room for four months to debate, argue, and barter until they collectively felt their design would deny excessive power to any individual or a clique of special interests.
When critics bemoan constitutional obstacles, they’re not only disparaging the Founders’ work, they’re impugning the wisdom of the entire Enlightenment movement. This philosophical insurgency lifted government, science, religion, and personal liberty out of the Middle Ages. It takes vain naiveté or guileful intentions to challenge a philosophy debated and peer-reviewed for over a century.
But 1787 was so long ago. The world is a much different now. We have the internet, nuclear weapons, terrorism, climate change, and digital piracy. How could something crafted over two hundred and twenty-five years ago remain relevant? The United States Constitution remains as relevant as ever because technology may change, but human nature does not. The Constitution was devised to bind people wielding power so they couldn’t hurt the helpless. Our Constitution defines how we make, execute, and adjudicate laws, and it is laws—not our Constitution—that deal with issues like the internet. (A potent example considering that the FCC recently claimed total control of cyberspace using an eighty year old law originally passed to regulate copper wire communication.)
The Constitution never needed to anticipate every twist in technology or geopolitical shift in the world. That job can be handled by our three separate government branches, each assigned enumerated powers that have been balanced and checked for our protection.
James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales.
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We are predisposed with the myth also that the three branches of government are co-equal. James Madison in Federalist 51 says otherwise:
“But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” – See more at: https://constitutingamerica.org/federalist-no-51/#sthash.U0VTFkFi.dpuf
And the state governments also act as a check against the federal government:
“First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” – See more at: https://constitutingamerica.org/federalist-no-51/#sthash.U0VTFkFi.dpuf
I actually have an abridged version of Madison’s convention notes, which I purchased during the first 90/90 Study of the Federalist Papers. I used the convention notes as a companion to the Federalist papers and the various essays presented. The Constitution is as relevant today as it always has been; it’s a shame that elected officials sworn to uphold the Constitution do not see it that way.
We simply must educate ourselves and others about the Constitution, the papers and the other “founding documents” used to write the final Constitution. We must know what we are fighting for.
Ralph, it would seem that, especially over the past 100 or so years with the growth of the agencies and their power, the Presidency now has most of the power. Would you agree? If so, then how to check that office as effectively as the Legislature is checked.
Also, post 17th Amendment, would you agree that the states no longer have the power they once did have?
The Constitution never perfectly balance powers between the three branches, but the original structure was certainly more balanced than today. Balanced power with checks was a paramount design goal. (For example, Madison supported a two house legislature to help overcome the natural advantage of the legislature in a republic.) Ralph is correct that the Framers intended the states to check the national government, and as Ron states, the 17th amendment did erode the balance of the original design. I would argue that the 16th Amendment really tilted the advantage toward the national government and away from the states. The full text is simple: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” The un-amended Constitution purposefully restricted the taxing authority of the national government to restrain the centralization of power. The 16th Amendment gave Washington Carte blanche and made the states dependent on the largess of the national government. Money truly is power.
Yes Ron. What you are talking about tends to become extra-legal administrative law that not even presidents have the power to do anything about. When the executive branch runs agencies that begin to gain funding outside of Congress via foundations run by appointed for life officers who are not confirmed by Congress, and erect supra-legal summary courts that claim cannot be sued in a court of law erected by Congress, then there is a real problem of prerogative power censured by the federal Bill of Rights. When a federal agency issues a judgement of a fine against private entities it is none other than automatic prosecution (illegal) that smacks of issues of general warrants (illegal) without the consent of a jury of peers (illegal).
I would do better than just repealing the 17th Amendment. I would go so far as to require federal senators to swear in at the national seat only, but convene always from their state capital via teleconferencing where their office is required to be right off of the state legislature’s as an annex. The state legislature itself is the constituency of the federal senator and is always available to represent the interests of the state to the federal government.
Rotational term limits would be good as well so that it discourages both incumbent career politician and lame duck behaviors. Other good measures would be amendments to soft repeal the 16th Amendment by making the state treasury the tax collector of the federal taxes AND make it so state citizens only file income taxes with their state on one state form, the portion of which is for federal taxes. Last, ban federal funds from state budgets and only allow taxes raised in the state to be spent on the objects of the state budget. This means federal money raised in the state would partly be kept in the state without ever going to Washington D.C. Eventually the federal bureaucratic machine would be cut out of the picture because Washington would no longer be able to bribe and induce states to pass laws and regulations or else have federal funds cut as a threat. States truly are the purveyors of domestic affairs and the federal seat is only supposed to do that which are of the general, national affairs.
Thanks Ralph, excellent ideas that I’ve not heard before. The current system does indeed “bribe” the states to perform in the way the federal agency wants them to perform.
An excellent set of essays from James Best. The framers indeed structured a federal government with “departments” (branches) intended to balance and check each other.
I believe, as a nation, we still believe in the concept of “checks and balances”, but we have become conditioned over the last 100-140 years to expect those checks to come from ideology, or party, not from the structure of the government itself. Think of how recent election campaigns are presented – this senate candidate will be the one to stop the affordable care act, this presidential candidate will provide waivers to all 50 states to essentially nullify a law (literally declaring, ahead of time, that he would willingly abuse his power as President to “check” an unpopular law). Listen to the current campaigns as they gear up, and you’ll be surprised how often we are told that candidate A will cancel out incumbent B’s ideology. It is rare when you hear something like this – “imagine a President who will sign legislation that repeals Obamacare”. That statement is at least an example of understanding that the appropriate Contitutional means to “balance and check” an unpopular law is to have the legislative department write and pass a law, then signed by the executive, to repeal a previous action.
The Constitutiion is being reinterpreted by the legislative, executive, and judicial departments. They no longer work in a fashion to balance and check, but rather they often work in collusion to ever increase the power and extent of the federal government. To expect those who have been practicing this abuse to self correct borders on delusional. We can continue to educate ourselves and others to vote in legislators and executives who will truly fight to correct this abuse; we’ve been doing this for decades, and it does not appear to be having a significant effect. And, unfortunately with the stated debt at $18 trillion, and the real debt anywhere between $90-$210 trillion, we are out of time in hoping that turnover alone can correct this problem.
The Constitution provides one other alternative to correct abuses, and it is the final “balance and check” on the federal government. Article V provides the state legislatures with the power to apply for a “convention for proposing amendments”, a method which bypasses the federal legislature (except for administerial duties of calling the convention, and prescribing the mode of ratification). The time is now to employ this Constitutional provision, to apply for an amending convention where amendments can be proposed to strengthen/clarify the original language in th Constitution. Or, to propose amendments where the states themselves can overturn, for the entire nation, a congressional law, a SCOTUS decision, a Presidential executive order.
Please give consideration to this option – visit http://www.conventionofstates.com.