Concentrated political power frightened the Founders. They especially feared unrestrained executive power. In fact, some of the delegates to the Constitutional Convention fought for a weak executive because history had been a continuous stream of kings and rulers supplanting legislative bodies. Despite misgivings, James Madison convinced the delegates that balanced power with effective checks was the only way to secure liberty and the idea became foremost in the design of a new government.
When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme— in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that a national consensus supported the concept that each part of the government should act as an effective check on all of the other parts of the government.
The idea of enumerated, separated, balanced, and checked government powers did not originate with the Founders. A great philosophical movement called The Enlightenment had spread new notions about government, religion, and liberty. The United States of America had the good fortune of becoming the testbed for the ideas of the greatest thinkers of eighteenth century Europe and America. The delegates were familiar with Montesquieu, Hume, Locke, and John Adams, who all advocated separation of power. They believed that by limiting government, liberty could survive the natural tendency of man to dictate the habits of other men.
The design purposefully slowed governmental action to allow due deliberation. This frustrates those who want the government to always “do something” about every problem, but it also hampers the government from doing something grievous that affects our life, liberty, and pursuit of happiness.
To a degree, each branch operates in slight fear that another branch will chastise or even overrule its actions. This was an intended consequence of the design. Madison wrote in Federalist No. 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.
Our Founding Fathers and Framers understood that governments can oppress people. During their lifetime, political power had been more than repressive … it had been life-threatening. They understood the worst aspects of government from personal experience, but they also knew it from extensive scrutiny of governmental forms throughout history. When they met at the Pennsylvania State House in 1787, they set a goal to mitigate the worst inclinations of those in positions of power. The Founders harnessed their new government with Lilliputian ropes that would hopefully restrain it from trampling all over the little people. Except, like Gulliver, our behemoth national government has shrugged off one constraint after another until there are no practical limits to its power.
After recent elections, people wonder if the ballot box is even a potent check on the abuse of power. Ignoring recent congressional elections, this executive branch has altered the Affordable Care Act, rewritten immigration law, used No Child Left Behind to mandate Common Core, revised labor law, gutted the work requirement from Welfare Reform legislation, used a 1934 telephone law to grab regulatory control of the internet, made appointments without senate advice and consent, and done much more that is constitutionally the prerogative of Congress. In the docket is an executive order to increase corporate taxes and to bypass Congress for a nuclear agreement with Iran. There will be more, because executive orders in this administration pop-up like plates in a cafeteria line. The justification? Not the Constitution. The Constitution no longer constrains and it appears the other two branches don’t feel “it is their right, it is their duty, to throw off such Government.”
Thomas Jefferson said, “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.”
President Barack Obama said, “We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”
Throughout history, the more that governments exercised undue power, the more they dictated the daily activities of its citizens. That is not what our Founders wanted. They insisted on a system that derived “just powers from the consent of the governed,” not the other way around.
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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