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Garrett Kelley
4/7/2021
Checks and Balances
Dr. Harris
The Friend of Liberty: Checks and Balances
The concept of checks and balances was integral to the plan the founders had laid for
their new nation. Without checks and balances, the system would certainly fall to some type of
autocracy, be it by congress or by the executive. It is unqestionable that checks and balances
have succeeded, because if they hadn’t, we wouldn’t live in a democracy right now. That being
said, specific checks and balances may have failed or not functioned the way the founders
intended, or not functioned at all. In this paper however, I will argue that checks and balances
have by and large succeeded in keeping one branch of government from becoming too powerful,
as the founders had originally intended. I will also address the argument that checks, and
balances have failed, and the inherent limitations of checks and balances as a whole. Finally, I
will look at how the founders intended checks and balances to function, what they missed, and
what proved to be unnecessary. In doing so, I hope to prove that overall, the checks and balances
which have been put in place have been more than successful in keeping the liberty of the people
safe.
Checks and balances are the constitutional methods through which the founders intended
to restrain the power of any individual branch of government, in order to ensure the liberty of the
people. James Madison, in Federalist No. 51, expresses the need for checks and balances: “The
only answer that can be given is, that as all these exterior provisions are found to be inadequate,
the defect must be supplied, by so contriving the interior structure of the government as that its
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several constituent parts may, by their mutual relations, be the means of keeping each other in
their proper places.” There was significant dissent among the founding fathers as to what the role
of each branch should be. There was also significant uneasiness about the potential for tyranny
opened by the inclusion of an executive branch, and the significant power which was being
handed over to the government in general. In order to secure the support of enough delegates,
and to secure the support of the people. As such, the justification for checks and balances was
clear: They were necessary to protect the people from tyranny by their government. By dividing
the government into coequal branches, each able to check the other, the probability of a unified
tyrannical government was reduced by a huge magnitude. Without the security afforded by the
system of checks and balances, a non-tyrannical form of government was bound to fall to
tyranny.
Just as in federalism, checks and balances was not a new concept before the
constitutional convention. The doctrine of separation of powers had been applied with varying
degrees of success throughout history. The Roman Republic, which was a model for the
founding fathers, had separate positions within the government which could veto each other.
Specifically, the two elected consuls who nominally shared executive power had the power to
veto any legislation passed by the senate. The same power was delegated to the tribunes of the
plebs, who could also veto both senate and consular business. However, because this veto system
was the only form of checks and balances, it led to complete gridlock at times, enticing
politicians to outright ignore the rules and circumvent them. The English tried a similar system,
with the House of Commons and House of Lords exercising legislative powers, and the King
exercising executive power. The United States, however, looks towards Montesquieu, and his
idea of splitting the government into an Executive, a Legislative, and a Judiciary branch as equal
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partners in government. While other systems had resorted to a system of vetoes, which had the
potential to subject government to absolute gridlock, the tripartite system had the advantage of
allowing two sectors of government to restrain the other, should it go rouge. The separation of
powers doctrine gave the different branches of government a vested interest in restraining the
others, in order to retain their own power. This is the underlying philosophy which forms the
bedrock of our democracy.
The basic framework of checks and balances had been established before the founders
made it to independence hall, but the question still remained on how to implement the checks in
a way which would not cause the gridlock which had plagued previous systems based on vetoes
between branches of government. The system the founder set up was a clever answer to this.
Instead of one branch sharing the same powers with another, the system was based on three
clearly defined types of power: Judicial, Executive, and Legislative. Each of these powers could
check the others, and therefore restrain them from infringing upon the liberty of the people.
There was still the problem of making each branch equal. In Federalist No. 51, Madison
summarized the utility of checks and balances and their basic function: "double security arises to
the rights of the people. The governments will control each other, at the same time that each will
be controlled by itself by the use of checks and balances". James Madison also argues that there
must be additional measures to make each branch equal in power. A specific way in which
Madison seeks to accomplish this is by splitting the most powerful branch, the legislature, into
two equal branches. To protect form the tyranny of the majority, one house, the Senate, was
elected by state legislatures. To protect from tyranny by a select group of political elites, the
House of Representatives was elected directly by the people. Madison also speaks at length
about the utility of using factions against each other. Madison writes in Federalist No. 10
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“unable to concert and carry into effect schemes of oppression. If the impulse and the
opportunity be suffered to coincide, we well know that neither moral nor religious motives can
be relied on as an adequate control. They are not found to be such on the injustice and violence
of individuals, and lose their efficacy in proportion to the number combined together, that is, in
proportion as their efficacy becomes needful.” Thus, the same solution through which Madison
sought to control the power of factions of the people, he sought to use to control the various
factions of government which might impose tyranny on the people. It can thus be said that the
intent of the founders was to create a system which stifled the tyrannical ambitions of factions,
through the divide and conquer principle. Many in our political system today assert that the
government governs through the divide and conquer principle. The people control their
government in much the same way however, and the effect of checks and balances cannot be
overstated.
With all this perspective out of the way, the question remains as to whether or not this
complex system has worked. Without a doubt, the answer to that so far has been yes. The very
fact that we live in a democracy today has shown that the system of separation of powers, and
the subsidiary idea of checks and balances. Without checks and balances, it is likely that one
branch of government would likely have run wild, with the other two powerless to stop it. There
are too many individual conflicts to name each, so I will cite several of the most important ways
in which the checks and balances system has succeeded in defending the liberty of the people.
The first, and perhaps most obvious, is the use of the power of impeachment. The threat of
impeachment has checked the ambitions of many an ambitious president, and some of the bolder
have actually been impeached. Richard Nixon is a prominent example of a president who
overreached, and then resigned to avoid removal from office. Either way, he was prevented from
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consolidating power. Another prominent example of functioning checks and balances is the
invalidation of a plethora of laws by the Supreme Court. The Supreme court has long kept both
the legislative and executive branch in check through ruling against laws that were
unconstitutional, for example in the case of Marbury v. Madison, or United States v. Alvarez.
Finally, there are several bills passed by congress which restrict the powers of the presidency.
These laws include the Posse Comitatus Act, the War Powers Resolution, and others which
restrict the ability of the President to act without approval from Congress. Overall, these checks
and balances, and many more, have kept the country safe from tyranny.
There are numerous occasions in which checks and balances have not functioned in the
way that the founders intended, and others that proved unnecessary after all. Additionally, there
are a few which the founders neglected to add. These factors are important, and they have been
addressed as such. However, these exceptions do not mean that checks and balances had failed.
A notable example of a check which many people support today is term limits. The founding
fathers did not include term limits in the original constitution, and to this day only the executive
branch is subject to term limits. However, the imposition of term limits does not necessarily
prevent buildups of power, and no president ever came close to becoming a king. This was
because of the other checks and balances, which prevented either Congress or the President from
becoming too powerful in the absence of term limits. An arguably failed check would be the
indirect election of Senators. While this was initially thought to be a check on popular opinion, it
proved open to corruption and was patently undemocratic. Over the years, we did away with this
particular aspect of the separation of powers. Finally, there are a few checks which did not
function the way the founders expected. In recent months, the abuse of the judicial appointment
system has come to prominence. Intended to give the executive and legislative branches a check
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on the judiciary, it has been used in recent times to stack the judiciary in favor of one side.
Additionally, it has been used by the legislature to circumvent the right of the President to
appoint justices to the Supreme Court. Still, these power moves have yet to be fully appreciated,
and their effects are still unknown.
Overall, the system of checks and balances put in place by our founders over 200 years
ago has kept our democracy alive for longer than any other in history. While many other factors
have led to our success, it would not have been possible without the protection afforded to our
liberties by the clever system of checks and balances created by our founders. While the concept
of checks and balances was not new when the founders wrote the constitution, the level to which
the founders perfected it was new among the nations of the world. Still, the system they created
was not perfect, and numerous flaws have come to light since the time of the founders. However,
as exemplified by the fact we do not live in an autocracy, but rather in the world’s oldest
democracy. Overall, the system of checks and balances has worked, and the institutions laid out
by the founding fathers remain strong to this day.