"Mausoleums, statues, monuments will never be erected to me. Panegyrical romances will never be written, nor flattering orations spoken to transmit me to posterity in brilliant colors." 201
A Constitution for 300 Million Freemen
Nevertheless his political precepts of the "divine science" of government caught on. Even Pennsylvania revised its constitution to include the separation of powers principle, and Benjamin Franklin, one of the last to be converted, finally acknowledged that the Constitution of the United States with its separation of powers was as perfect as man could be expected to produce. He urged all of the members of the Convention to sign it so that it would have unanimous support.
John Adams said it was his aspiration "to see rising in America an empire of liberty, and the prospect of two or three hundred millions of freemen, without one noble or one king among them." 202
"The necessity of reciprocal checks in the exercise of political power...." (George Washington)
Seventeenth Principle: A system of checks and balances should be
adopted to prevent the abuse of power.
"The necessity of reciprocal checks in the exercise
of political power ..." -- George Washington
It must have been astonishing to John Adams to discover that after he had sold the people on the separation of powers doctrine, some of them wanted the separation to be so complete that it would have made the system unworkable,
These people who took this puritanical view opposed the adoption of the Constitution on the grounds that it did not make the separation of power between the three departments complete and absolute.
They missed a most important factor in Montesquieu's presentation. He said each of the departments was to be separate in its functions, but subject to the checks of the other two departments in case it became abusive in performing those functions.
James Madison Explains "Checks and Balances"
Blending Does Not Mean Usurping
Checks Were Designed to Protect the "Will of the People"
The Original Intent of the Founders
The Importance of Preserving the Founders' System
The Founders' Device for "Peaceful" Self-Repair
Watergate
The Blessing of Domestic Tranquility
James Madison Explains "Checks and Balances"
It is interesting that James Madison had to spend five Federalist Papers (numbers 47 to 51) explaining that the separation of powers between the executive, legislative, and judicial departments should not be absolute, but should make allowances for a built-in system of checks and balances. He said the trick was to separate the powers and then delicately lace them back together again as a balanced unit.
Madison conceded, however, that keeping the three departments of government separated was fundamental to the preservation of liberty. He wrote:
"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." 203
Madison then proceeded to explain how Montesquieu recommended that the powers be separated as to function but coordinated for the prevention of usurpation or abuse. Note his opening tribute to Montesquieu:
"The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind." 204
In the Federalist Papers, No. 47, Madison indicated that even those states which demanded an absolute separation of powers in the federal constitution employed a blending of power in their own state constitutions. He pointed out that just as those safeguards were necessary for the states, they were equally important to include in the federal constitution. In fact, he said:
"I shall undertake ... to show that unless these departments be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim [of Montesquieu] requires, as essential to a free government, can never in practice be duly maintained." 205
Blending Does Not Mean Usurping
Notice that 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. This "blending" does not, therefore, intrude into the legitimate functions of each of the departments. As Madison explained it:
"It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.... The next and most difficult task is to provide some practical security for each, against the invasion of the others." 206
Just how difficult this task turned out to be is demonstrated in a number of problems which have arisen in our own day. The failure to use the checks and balances effectively has allowed the judiciary to create new laws (called judicial legislation) by pretending to be merely interpreting old ones. Failure to use the 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.
The whole spectrum of checks and balances needs to be more thoroughly studied and more vigorously enforced. Madison appropriately anticipated that "parchment barriers" in the Constitution would not prevent usurpation. Each department of government has the responsibility to rise up and protect its prerogatives by exercising the checks and balances which have been provided. At the same time, the people have the responsibility to keep a closer watch on their representatives and elect only those who will function within Constitutional boundaries.
Checks Were Designed to Protect the "Will of the People"
All of these aberrations in the administration of government have done violence to the intent and desires of the people. The Founders felt that if the checks and balances as originally provided were to prove inadequate, the remedy should be a device by which the people might more directly influence the power centers of government so that decisions would be more in harmony with their wishes. James Madison said it this way:
"As the people are the only legitimate fountain 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 any one of the departments may commit encroachments on the chartered authorities of the others." 207
But how do the people protect themselves? There must be adequate legal machinery provided so that the representatives of the people have more direct input to project the will of the people when the officials of government are ignoring it. Madison discussed the various overseer devices which had been considered in the past to keep the departments of government within their Constitutional channels. None had proven particularly successful.
Pennsylvania tried out a Council of Censors to enforce its constitution. The council was effective in determining what violations had occurred, but was powerless to remedy the evil.
Others suggested that the people be allowed to vote on critical constitutional issues at specified times. However, the tremendous emotional anguish displayed during the ratification of the U.S. Constitution demonstrated that this was not something to be undertaken very often. Said Madison:
"The danger of disturbing th
e public tranquility by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government [the ratification conventions] and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied." 208
In the end, Madison contended, there is no better device to curb the departments of government than the internal machinery of checks and balances provided in the Constitution as written. Said he:
"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 several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." 209
What the Founders finally devised is recognized as an ingenious device when properly implemented. The fact that it has sometimes fallen into neglect in recent times does not detract from the fact that it is still the most effective way to maintain the American eagle in the balanced center of the political spectrum. The Constitution made the departments separate as to their assigned function, but made them dependent upon one another to be fully operative. As we depicted in an earlier section of this book, the symbolic American eagle has three heads, but they operate from one neck. As a former Under-Secretary of State, J. Reuben Clark, Jr., explained it:
"The Framers ... separated the three functions of government, and set each of them up as a separate branch -- the legislative, the executive, and the judicial. Each was wholly independent of the other. No one of them might encroach upon the other. No one of them might delegate its power to another.
"Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. These branches stood together, supported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches -- legislative, executive, and judicial -- and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. The Framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle." 210
The Original Intent of the Founders
As it turned out, the American Founding Fathers achieved a system of checks and balances far more complex than those envisioned by Montesquieu. These included the following provisions:
1. The House of Representatives serves as a check on the Senate since no statute can become law without the approval of the House.
2. At the same time the Senate (representing the legislatures of the states before the 17th Amendment) serves as a check on the House of Representatives since no statute can become law without its approval.
3. A President can restrain both the House and the Senate by using his veto to send back any bill not meeting with his approval.
4. The Congress has, on the other hand, a check on the President by being able to pass a bill over the President's veto with a two-thirds 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 filling 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 a 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 affect 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 Importance of Preserving the Founders' System
President Washington felt that the separation of powers with its accompanying checks and balances was the genius of the American system of government. The task was to maintain it. In his Farewell Address he stated:
"It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.
"The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position.
"The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed." 211
The Founders' Device for "Peaceful" Self-Repair
During nearly two centuries that the Constitution has been in operation, it has carried the nation through a series of traumatic crises. Not the least of these have been those occasions when some branch of government became arrogantly officious in the administration of its assigned task or flagrantly violated the restrictions which the Constitution placed upon it. As President Washington indicated, there is a tendency for some of this to occur continually, as is the case in our own day, but when it reaches a point of genuine crisis there is built-in Constitutional machinery to take care of it.
By way of contrast, we have scores of nations which claim to have copied the United States Constitution, but which failed to incorporate adequate checks and balances. In those countries, the only remedy, when elected presidents have suspended the constitution and used the army to stay in power, has been to resort to m
achine guns and bombs to oust the usurper. This occurs time after time. What the Founders wished to achieve in the Constitution of 1787 was machinery for the peaceful means of self-repair when the system went out of balance.
Watergate
One of the most dramatic illustrations of the peaceful transfer of power in a time of crisis was in connection with the Watergate scandal. A President was found to have used his high office for purposes which were beyond the scope of his authority and outside the ramifications of legal conduct. Under threat of impeachment, he resigned. At the time, he was Commander-in-Chief of the Armed Services of the United States. He made no attempt to use these military forces to keep himself in power. In fact, under the American Constitution, it would have been useless for him to have attempted it. The transfer of power was made quietly and peacefully once the issue came to a point of decision.
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