Checks and Balances

How many times have you heard that term?  We usually think it refers to the distribution of powers between the three branches of government, but it is more far-reaching.  The design of Congress as a bicameral body and the institution of alternating terms, with different lengths for those in the senate, house, and executive branches come under the same heading.  Unlike Woodrow Wilson and his progressive followers, the Founders were innately suspicious of government and its capacity to abuse power.

So, as part of the checks and balances they set up a system whereby the federal government was kept in a state of tension with state governments. Many of the arguments surrounding the creation of the Constitution and the Bill of Rights revolved around how much power the states should cede to the federal government. The Founders sought to limit the concentration of power through these mechanisms, but they also recognized the dangers inherent in pure democracies. It wasn’t just government that the Founders distrusted.

James Madison in Federalist 10 explained,

“… democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

By designing a republic, the Founders sought to vest political power in the people – “We the People, do ordain and establish…” but avoid the perils endemic to democracies. This retained power is spelled out in the ninth and tenth amendments to the Constitution and is the final check on abusive government.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Ironically, although the Founders, as an elite group of intellectuals with decent moral character, probably did know what was best for the people, they were also realistic about human nature.  Madison put this rather succinctly in Federalist no 51:

If men were angels, no government would be necessary.   If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

There are certainly no angels in government today, let alone men of the caliber of the Founders.  One of the concerns of the anti-Federalists was that over time their representatives would become out of touch with those who elected them and would be as abusive an elite as any monarchy.

The new constitution vests Congress with such unlimited powers as ought never to be entrusted to any men or body of men.¹

Upon an attentive examination you can pronounce it nothing less, than a government which in a few years, will degenerate to a compleat Aristocracy, armed with powers unnecessary in any case to bestow, and which in its vortex swallows up every other Government upon the Continent. In short, my fellow-citizens, it can be said to be nothing less than a hasty stride to Universal Empire in this Western World, flattering, very flattering to young ambitious minds, but fatal to the liberties of the people.²

It is interesting to note that Jefferson had similar misgivings, He wrote Madison in March 1789:

“The tyranny of the legislatures is the most formidable dread at present, and will be for long years.”

Such fears were not unjustified as the current membership of Congress demonstrated by passing ObamaCare over the strongly voiced objections of  “we the people.”  Those who now hold elective office are daily demonstrating that their will and not ours will be done.

The Founders gave us the means to redress these abuses and begin the restoration of representative government. In November 2010, we the people can use the political power guaranteed us by the Constitution to replace one entire house of Congress and a third of the other. Equally important, we can make it very clear that there is a price to be paid for legislative tyranny and it will be paid at the ballot box. Failure to act is to be complicent in the destruction of our own liberties.

¹The essays of an “Old Whig” appeared in Philadelphia’s Independent Gazetteer in late 1787 and early 1788.

²Unknown Anti-Federalist who used the name of “John DeWitt” published in the Boston American Herald in late 1787.