The 28 Principles of Liberty: Principle 17
“A System of Checks and Balances Should be Adopted to Prevent the Abuse of Power”
After John Adams had sold the people on the separation of powers, it must have been shocking to him to see that they wanted to make the separation so complete that it would have made the system unworkable.
The individuals who took a puritanical view opposed the adoption of the Constitution because they wanted the separation complete and absolute. They missed the most important part, and that was that they were to be separate in their functions, but subject to the checks and balances of the other two departments in case it became abusive in performing those functions.
James Madison spent 5 of the Federalist Papers numbers, 47 to 51, explaining why the separation of powers should not be absolute, but should make allowances for a built-in system of checks and balances. He conceded that keeping the three departments separated was fundamental to the preservation of liberty.
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
The purpose of checks and balances is a constitutional control in the hands of each department of government to prevent any usurpation of power by another department or abusive administration of the power granted to it.
The failure to use the checks and balances effectively has resulted in allowing the judiciary to create new laws by pretending to be merely interpreting old laws. Failure to use checks and balances has also allowed the President to make thousands of new laws, instead of congress, by issuing executive orders. It has allowed the federal government to invade the reserved rights of the states on a massive scale. It has allowed the legislature to impose taxes on the people never contemplated by the Founders, or the Constitution. Each department of the government has the responsibility to rise up and protect its prerogatives by exercising the checks and balances which have been provided, and even more so, the people have the responsibility to be the watchmen over their representatives and elect ONLY those that will function within Constitutional boundaries.
James Madison said, “As the people are the only legitimate foundation of power, and it is from them that the constitutional charter under which the power of the several branches of government is derived, it seems strictly consonant to the republican theory to recur to the same original authority whenever an one of the departments may commit encroachment on the chartered authorities of the others.”
How do the people protect themselves? Madison sought many different avenues and found that the only protection was within the machinery of checks and balances provided in the Constitution as written.
The three departments are independent, yet reliant on each other to fulfill their functions, so they are mutually dependent. Their resulting system was far more complex then Montesquieu. Here are their provisions:
1. The House of Representatives serves as a check on the Senate since no statue can become a law without their approval.
2. The Senate also serves as the check on the House of Representatives since no statue can become a law without its approval.
3. A President can restrain them both by using his veto to send back a bill not meeting his approval.
4. The Congress has on the other hand, a check on the President by being able to pass a bill over his veto with a 2/3 majority of each house.
5. The legislature also has a further check on the President through its power of discrimination in appropriating funds for the operation of the executive branch.
6. The President must have the approval of the Senate in filing important offices of the executive branch.
7. The President must also have the approval of the Senate before any treaties with foreign nations can go into effect.
8. The Congress has the authority to conduct investigations of the executive branch to determine whether or not funds are being properly expended and the laws enforced.
9. The President has a certain amount of political influence on the legislature by letting it be known that he will not support the reelection of those who oppose his program.
10. The executive branch also has further check on the Congress by using its discretionary powers in establishing military bases, building dams, improving navigable rivers, and building interstate highways so as to favor those areas from which the President feels he is getting support by their representatives.
11. The judiciary has a check on the legislature through its authority to review all laws and determine their constitutionality.
12. The Congress, on the other hand, has a restraining power over the judiciary by having the constitutional authority to restrict the extent of its jurisdiction.
13. The Congress also has the power to impeach any of the judges who are guilty of treason, high crimes or misdemeanors.
14. The President also has a check on the judiciary by having the power to nominate new judges subject to the approval of the senate.
15. The Congress has further restraining power over the judiciary by having the control of appropriations for the operation of the federal court system.
16. The Congress is able to initiate amendments to the Constitution which, if approved by three-fourths of the states, could seriously effect the operation of both the executive and judicial branches.
17. The Congress, by joint resolution, can terminate certain powers granted to the President such as war powers without his consent.
18. The people have a check on their congressmen every two years, on their President every four years, and on their Senators every six years.
The Founders Device for Peaceful Self-Repair
In other nations that copied our constitution, they forgot to incorporate adequate checks and balances. Instead, when a usurper takes over, they must use an army and result to machine guns and bombs to get them out. What the founders wished to achieve in the Constitution of 1787 was machinery for the peaceful means of self-repair when the system when out of balance.
During Watergate, this peaceful process was used. The Congress threatened to impeach, and the President who used his high office for purposes that were outside his scope of authority and the ramifications of legal conduct, he resigned. There was no command of the army to allow him to stay in power; it was a quiet and peaceful transition. This was the primary purpose of the United States Constitution, to have a peaceful means in order to repair distortions of power. While it requires more patience then the use of force, its outcome is much more certain.