Checks, Balances, and the Science of Government—the true guardians of Liberty and Prosperity in America today

As Alexander Hamilton wrote in Federalist No. 1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The U.S. Constitution was the Founders’ solution to this problem.   

At the core of this solution was the system of Checks & Balances. 

In order to preserve our Constitution, our Liberty, and the possibility of remaining a free and prosperous Nation, grounded in the principles of Liberty, we must understand what needs to be done to maintain the smooth functioning of the system of Checks & Balances into the future.  

First, let us understand why such a system was deemed necessary in the first place. 

For thousands of years, humans allowed themselves to be ruled by the “Divine Right of Kings”.  This practice started in ancient times when humans believed that certain leaders were chosen directly by God himself.   As we became more scientific and more mature, however, we realized that God did not chose our political leaders, but that we ourselves did so.  We came to understand that no one person was immune from error, prejudice, greed, and passion, and that all the human defects of character applied as much to the rulers as they did to those who are ruled. 

In other words, we realized that no human being was qualified to play God and that granting anyone absolute powers of governance was a danger.   As John Jay remarked in Federalist No. 4:

“ . . . absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.”

Understanding that Kings and Lords were just as fallible as subjects they ruled over, the Founders set themselves the task of designing a system that would mitigate these effects and permit a people to enjoy the blessings of Liberty and prosperity to the greatest degree  possible.  These are the guarantees that Thomas Jefferson penned in the Declaration of Independence—the only rational guarantee that any government could really make: Life, Liberty, and the Pursuit of Happiness.  Asking more than that of any government would be foolish. 

In order to design a system which would withstand the abuses of human nature, the Founders engaged in a deep study of history, political science, economics, and philosophy, and then gathered the best minds of their day in an honest, open, and non-partisan discussion.  This was an unprecedented event, which almost seems impossible in our modern day world of hyper-partisan sentiments. Indeed, it is nearly unbelievable that the Founders actually pulled it off. As James Madison stated in Federalist No. 37: “ . . . the [Constitutional] convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities, the disease most incident to deliberative bodies, and most apt to contaminate their proceedings.”

The process that the Founders used was scientific in nature and deliberative in the extreme. In Federalist No. 18, Hamilton and Madison referred to the process employed in the Constitutional Convention as the “science of federal government.” Let us now consider what this science has to teach us still today.   

Every scientific inquiry begins with an object in mind.  The object of the science of government was to find the best balance between Liberty, prosperity, and security.  Hamilton described this new science in Federalist No. 9, as follows:

“The science of politics . . . like most other sciences, has received great improvement.  The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.  The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people by deputies of their own election; these are wholly new discoveries, or have made their principal progress towards perfection in modern times.  They are the means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.”

But maintaining the proper balance isn’t easy.  As Hamilton recognized in Federalist No. 8:

“Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war, the continual effort to and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights.  To be more safe, they at length become willing to run the risk of being less free.”

Or, as Madison put it in Federalist No. 63, “Liberty may be endangered by the abuses of liberty as well as the abuses of power.”  

In this connection, another danger always lurking in the background was what the Founders referred to as the danger of “faction”, or what we today would call “partisanship”.  James Madison defined “faction” in the following terms in Federalist No. 10:

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other or to the permanent and aggregate interests of the community.”

Madison also described this danger in Federalist No. 10, in the following terms:

“AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.  The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice.”

In designing this system, the Founders bore several distinct considerations in mind.  First, as Hamilton observed in Federalist No. 22, “the fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.  The streams of national power ought to flow immediately from that pure, original foundation of all legitimate authority.”

Second, the values of Liberty, stability, and energy, must all operate in a well-regulated balance.  As Hamilton stated in Federalist No. 37:

“Among the difficulties encountered by the [Constitutional] convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and the republican form.  Without substantially accomplishing either part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public . . . ”.

Lastly, the system must have sufficient safeguards against the dangers of tyranny, in all its many forms.  In Federalist No. 47, Madison defined tyranny as follows:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether heredity, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

As a result of their scientific inquiry, the Founders determined that the best way to strike the balance was through a carefully calibrated system of Checks & Balances.  The Founders rejected the fantasy notion, which some believe in today, that there existed a magical, government-free state of being, in which everyone could enjoy Liberty.  They believed and felt strongly that government was necessary to secure the blessings of Liberty.  As Madison stated in Federalist No. 51:

“In a society under the forms of which the stronger faction can be readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.”

Essentially, this requires us to divide up political power and give each department what Madison referred to in Federalist No. 51, as “the necessary constitutional means and personal motives to resist encroachment from the others . . . Ambition must be made to counteract ambition.  The interest of the man must be connected with the constitutional rights of the place.”   Or, as Madison also stated in Federalist No. 51, by arranging things in this way we ensure that “the private interest of every individual may be a sentinel over the public rights.” 

In this scientifically determined system of governance, political power is divided up into three separate Branches, or what the Founders referred to as “departments”: the Judiciary, the Executive, and the Legislative.  As Madison explained in Federalist No. 51 and Hamilton explained in Federalist No. 66, each of these Branches is constructed according to the following common principles:

·      Each Branch is to have a will of its own;

·      Each Branch will have as little to say as possible in its own composition;

·      Each Branch should be formed as closely as possible according to the will of the people;

·      Each Branch must be independent of the others;

·      Each Branch should have its own separate interests and agendas; and

·      The Branches should enjoy some “partial intermixture” between them as necessary for the "mutual defense of the several members of government against the other.”

First, let us consider the Judiciary, which is the weakest and strangest of the three. Hamilton summarized the powers of the Judiciary in relation to the other two Branches, in Federalist No. 78, as follows:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in the capacity to annoy or injure them.  The Executive not only dispenses the honors, but holds the sword of the community.  The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.  The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society; and can take no active resolution whatever.  It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

 As U.S. Supreme Court Chief Justice John Roberts recently reminded us, the fundamental role of the Judiciary is to check the excesses of the Legislative and Executive Branches when necessary:

“The judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the President.  Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive, and that does require a degree of independence.”

This statement is in strong concurrence with Hamilton’s statement in Federalist No. 78, that “[t]he complete independence of the courts of justice is particularly essential in a limited constitution.”

Next, there is the Executive Branch.  First and foremost, the Founders always intended that, in addition to holding the power of the sword, the Executive have sufficient energy to advance the affairs of the Nation.  As Hamilton said in Federalist No. 70, “Energy in the Executive is a leading character in the definition of good government.”  At the same time, there can be no doubt that the Founders were wary about the propensity of the Executive to overstep its bounds and engage in acts of tyranny.  That is why the Executive lacked the power to be its own judge, originate money bills, or impose taxes.   As Madison stated in Federalist No. 48, the “executive magistracy is carefully limited; both in the extent and the duration of its power . . .”.

Finally, there is the Legislative, which the Founders viewed as the most complicated and difficult to manage of all three.  As Madison described in Federalist No. 48, the main problem with the Legislature was that it had to be given more power and flexibility in order to be able to respond to the changing conditions of the world, which required that it be conferred unique powers which were difficult to manage in advance.

“The Legislative department derives a superiority in our governments from other circumstances.  Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments . . . Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.”

In fact, in Federalist No. 45, Madison expressly stated his fear that Congress would be the most likely Branch to violate the Constitution, and prayed that, if it did, the judgment of the Judiciary, combined with the energy of the Executive, would operate together to check it. 

This, then, is a basic outline of the three Branches and how they are to function under our Constitutional system of government.  As Hamilton noted in Federalist No. 22, in order for the “machine” of government to work as the Founders intended, the parts must be running smoothly, be well-maintained, and no one Branch should be allowed to throw sand in the gears of any others.

With these thoughts in mind, let us now consider how this system is under threat today, and what we must do to “repair” it.

For reasons that are not entirely clear, the current Executive has taken it upon itself to attack the Judiciary and take powers from the Legislative.   For the moment, the Judiciary appears to be weathering the attacks and assaults thrust upon it by the Executive with grace and composure.  Public opinion is firmly on its side, as poll after poll shows that the American people demand that the Executive respect the decisions of the Courts and follow their orders.  The Judiciary has clearly won the hearts, minds, and respect of the American people and will hopefully continue to do so in the future.

The Legislative, however, presents a more complicated question.  For reasons that are not entirely clear, Congress has decided to completely abdicate its Constitutional responsibility and surrender more and more of its core powers to the Executive without protest.  Nowhere is this clearer than in the question of President Trump’s tariffs, which I have addressed in another post on my campaign website. However, the question of tariffs is far from the only sphere in which Congress has surrendered its powers to the Executive.

In any event, the solution to our present dilemma is clear: we must elect persons to Congress, regardless of party affiliation, who will take their Oath to the Constitution to heart, who will not lamely surrender Congress’ powers to the President, and who will defend the Judiciary from unwarranted and scurrilous attacks of any nature. 

As a starting point, this process of restoring the Constitutional balance should begin with the immediate repeal of all of President Trump’s abusive tariffs, and the establishment of a legal requirement that any future tariffs of any kind may only be enforced upon the approval of the Senate. In a separate post on this campaign website, I have set forth my specific arguments why President Trump's tariffs constitute an unlawful usurpation of Congressional authority under Article I, Section 8 of the U.S. Constitution, and the reasons why I believe this proposal is necessary.  

While tariffs are not the only area in which Congress must reclaim its power from the Executive, it is by far the most pressing and urgent arena as all Americans can plainly see.  Thus, I believe, we should should remain squarely focused on this issue until it is resolved before passing on to any other matters.  Once this collective objective has been achieved, and we have started to restore the Constitutional balance, other areas can be properly considered in due course. 

In conclusion, let us recall the following words spoken by President Abraham Lincoln in his 1837 speech entitled, “Opposition to Mob Rule”, before in the Young Men’s Lyceum of Springfield, Illinois:

At what point then is the approach of danger to be expected?  I answer: If it ever reach us it must spring up amongst us; it cannot come from abroad.  If destruction be our lot we must ourselves be its author and finisher.  As a nation of freemen we must live through all time, or die by suicide.

The challenge that Lincoln foresaw nearly 200 years ago remains present today.  The struggle for Liberty continues.  Let us not surrender our lives and our national fortunes to the whims and caprices of one man acting alone.  Let us return to the principles of our Constitution and strengthen the system Checks & Balances that has served us well for the past 250 years with that hope that it may serve us well for next 250—and beyond!