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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