What is a check? What is a balance? What is being checked or balanced? Why exactly would we need something to be checked or balanced? “Checks and Balances” is a metaphor borrowed from Clockwork (Bailyn 274). In the past days, John Harrington had
compared the principle of rotation to the working of a screw or a vice (Harrington 249). From there this political metaphor gained momentum and eventually popularity owing to the endeavours of the likes of Baron de Montesquieu. The constitution of the United States is a paradigmatic example of this. This constitution is a brainchild and consequence of many events that preceded it.
It strived to cater for various goals of the founding fathers, of which a fundamental one was to balance the effects of power and preclude tyranny. Consequently, federalism was applied in order to balance the national and state governments and therefore ebb the extents of power in hands of the national government. Thomas Jefferson and other founders were convinced that government at the state level was more democratic by virtue of being closer to the general people, and thus federalism came forth. Another system was, of course, the system of checks and balances. It was envisaged that this system would prevent any one branch of government exceeding its powers and therefore prevent dictatorship. After escaping from British rule, the last thing the founding fathers wanted to have was one such system in their own country. This system divided the government into three branches (executive, legislative, and judicial) with all branches stipulated certain independent and overlapping powers. In a nutshell, legislative branch makes the laws, the executive branch implements it, while the judicial branch interprets it.
Checks and balances is essentially a system designed to prevent a particular branch of the government gaining too much power over another. It ensures a systemic balance in the government structure. The executive branch includes the President and his federal bureaucracy, who have powers over the legislature (Senate and the House of Representatives). The president’s biggest power over the legislature is the power to veto. For example, President Johnson vetoed bills brought by the Congress over 20 times after the Civil War. As for the judicial branch, Supreme Court judges are appointed on a lifetime basis, but they are not above impeachment. Similarly, the President can not appoint judges without the senate’s approval. The President and Congress may agree upon a law, but the Supreme Court can declare that law unconstitutional.
Checks and balances have obviously practical implications in the lives of Americans. At the executive branch, the presidential powers include the ability to approve or veto bills (except for pocket veto), carrying out federal laws, endorsing and signing treaties, granting general pardons to federal offenders, appointing judges and high ranking federal officials, acting as the commander in chief of the armed forces. He can also refuse to spend money allocated for specific purposes. As a commander in chief of the armed forces he can also wage war. Interestingly, the pardons signed by the President are not subject to the approval of any other branch of the government or even the recipient. The checks on the President’s executive powers include the power of congress to override any veto by a two-third majority vote, refusal to confirm appointments or ratify treaties, etc. Furthermore, Congress can impeach or remove a President and declare a war. The legislative powers of the congress include passing federal laws and establishing lower federal courts and the number of federal judges. It also enacts taxes, authorizes borrowing and setting of budget, reserves the sole power to declare a legal war, authorize investigation against the President or high ranking federal officials, and ratifies treaties. The checks on Congress’ powers include the president’s power to veto a federal bill, and Supreme Court’s ability to render a law unconstitutional. Furthermore, within the legislative branch, both houses of Congress must vote successfully for a law to pass. As for the judicial branch, it is designed to interpret and apply laws by trying federal cases. It also determines which laws apply to which case, has the sole power to nullify laws that conflict with a more important law, or constitution, determines the disposition of prisoners, has power to compel testimony and production of evidence. A unique quality of the judicial branch is that it polices its own members and is traditionally immune to arbitrary dismissal by other branches of the government. Also, it can declare laws and policies passed by Congress and executive acts (presidential) unconstitutional.
Numerous real life conflicts have put this system to test over the past couple of centuries. President Woodrow Wilson diligently worked on a peace treaty named the Treaty of Versailles that would have ended the first World War. In 1918, however, Congress refused to ratify it. In 1987 President Reagan appointed Judge Robert Bork to the Supreme Court. In the end, this nomination was refused. After the end of Civil War, Congress overrode more than 20 vetoes by the Presidents. In 1935 and 1936 two Roosevelt programs named NIRA and AAA were declared unconstitutional by the Supreme Court.
Whether or not this system of checks and balances stands as important as it was at the beginning of “American Experiment” begs a closer scrutiny of its benefits and demerits. A strong argument in favour of checks and balances is that it has been functional for over 200 years and shows no imminent signs of failure – the longest for any current constitution in the world. President Nixon’s resignation over Watergate scandal and Bill Clinton’s infamous impeachment trial over the affair with Monica Lewinsky are proofs that the system still ably guards the United States from tyrannical administrations, widespread corruption and scandalous cover-ups. Also, the constitution is extremely difficult to amend as backed up by the fact that the last amendment was done in 1992. This means protective measures can’t be easily amended from the constitution, which ensures the constitution to remain a workable solution for the future. Another great benefit of this system is its enthusiastic promotion of bipartisanship. The two major parties — Republicans and Democrats — ought to work together to make the government more efficient and legislation easier. Without this cohesiveness at the party level it would be highly difficult for the executive branch to pass any law, which would create a political gridlock. For example, George W Bush reaped the benefit of bipartisanship to get education reform bills passed in 2001-2002. Bill Clinton, on the other hand, found his healthcare reform bill defeated as he ignored the input of the Republicans on the issue during his tenure.
A major argument against checks and balances is the idealistic and somewhat naive expectations behind it, which actively depends on the assumption that fair bipartisanship will exist and ignores the contradiction of interests between different branches. Many of these contradictions shouldn’t have been allowed under any political system – especially this one – considering it was specifically devised to prevent it. For instance, the Korea, Vietnam, and Iraq wars have underscored the ability of executive branch to grossly circumvent the system altogether. None of these wars passed any form of approval from the Congress, which generally issues a declaration of war first.
Furthermore, this system sometimes encourages a deadlock rather than preventing it. For example, Bill Clinton faced a major crisis with passage of his federal budget in 1995. Legislative and executive branches comprised of opposing parties, and this coupled with the lack of bipartisanship resulted in closing down of the government once money ran out. Thankfully for Clinton, he was able to manoeuvre through the gridlock and eventually got the budget passed. Again, with Clinton, in 1997 and early 1998 the Senate refused to take any action on many of Clinton’s appointments of new federal court nominees. This is known as a major check on presidential authority. This dispute between Clinton and the Senate meant that there weren’t enough federal judges to handle the workload in federal courts for a considerable period of time. This is a sterling example that two branches of the government working together doesn’t necessarily translate to administrative efficacy, and it is naive to expect both parties to play fair – especially on the event of a major election.
On the surface, these examples highlight the necessity of a more robust system to counter the possibility of legislative versus executive impasse. During the impeachment trial of Andrew Johnson, English author Walter Bagehot said, “The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good: the American, upon the principle of having many sovereign authorities, and hoping that the multitude may atone for their inferiority.” (Bagehot 293). To combat these drawbacks many political scientists have suggested the introduction of a parliamentary system. Former President Woodrow Wilson was an avid advocate of one such system as he agrees with the spirit of Bagehot’s stance: “It is not necessary to assent to Mr. Bagehot’s strictures; but it is not possible to deny the clear-sighted justice of this criticism. In order to be fair to the memory of our great constitution-makers, however, it is necessary to remember that when they sat in convention in Philadelphia the English Constitution, which they copied, was not the simple system which was before Mr. Bagehot’s eyes when he wrote.” (Wilson 164)
These demerits aside, there is a debate on the extent of power the different branches inherit. Traditionally the judicial branch is considered the weakest and executive the most powerful. While the Constitution does not explicitly declare any branch of the government to be more powerful than another, in practice a branch’s power to defend itself from influence of another is understandably scoped. James Madison illustrates this point in Federalist 51: “It is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.” Additionally, this concept of checks and balances is seen by some as a prominent beacon of American exceptionalism.
In fairness, the system of checks and balances is one that has been implemented for over 200 years, and was formulated by a group of politicians who had little idea of what the union would turn into after such a lengthy period of time. Despite that, one must consider the fact that all the branches of the government are readily restricted by the Constitution and the checks and balances implemented from within. No tyranny or dictatorship is yet to sprout off this system till this date, and that is a testament to the effectiveness of this concept. The infrequent lapses and impasses are natural of any such political system and should not be hold against the practical success of this system. Therefore the system of checks and balances does truly pass the test of time and till this date remains as important in maintaining the harmony of different government branches as it did at the advent of the “American Experiment”, and as such no wholesale constitutional reform is required in foreseeable future.
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.:
Harvard University Press, 1967), p. 274.
Harrington, Political Works, 249.
Baron de Montesquieu, Charles-Louis de Secondat.” Stanford Encyclopedia of Philosophy. 18
July 2003. Stanford University. 30 August 2007
Checks and balances in the government of the United States of America, 31 August 2007
Emory Law School: Historical Documents – Constitution of the United States, 30 August 2007 < http://www.law.emory.edu/index.php?id=3080>
34. The Bork Nomination, 30 August 2007 < http://eightiesclub.tripod.com/id320.htm>
Minority Presidents and Democratic Performance in Latin American Politics and Society, 28
August 2007 < http://findarticles.com/p/articles/mi_qa4000/is_200610/ai_n16756021>
Walter Bagehot, Eng|lish| Const|ituition|. P. 293
Walter Bagehot, Eng|lish| Const|ituition|. P. 296
Woodrow Wilson: The Essential Political Writings, Edited by Ronald J. Pestritto, P. 164
James Madison: The Structure of the Government Must Furnish the Proper Checks and Balances
between Different Departments, The Federalist # 51, Indepdendent Journal, Wednesday, February 6, 1788
Rick Tilman. “Thorstein Veblen’s Views on American ‘Exceptionalism’: An Interpretation.”
Journal of Economic Issues. 39#1 2005.
Voss, Kim. The Making of American Exceptionalism: The Knights of Labor and Class
Formation in the Nineteenth Century(1993)
Checks and Balances – MSN Encarta, November 01 2007, < http://encarta.msn.com/text_761585772___3/Checks_and_Balances.html>