Exploring the System of Checks and Balances Among the Three Branches of Government Machinery

1. Introduction

The system of checks and balances is a fundamental principle of governance that plays a vital role in the functioning of the three branches of government machinery, namely the legislative, executive, and judiciary. The concept of checks and balances was first proposed by the renowned political philosopher Montesquieu and later adopted by the framers of the U.S. Constitution. It is designed to prevent the undue concentration of power in any single branch of government and to establish a system of mutual oversight and restraint. This is accomplished through the allocation of specific powers and responsibilities to each branch, along with the establishment of mechanisms for oversight and control. As a result, each branch is able to monitor and limit the powers of the others, thus ensuring a balance of power and protecting individual liberties and rights. Given the increasing complexity and significance of government functions, the system of checks and balances has become a topic of inquiry in its own right.

The system of checks and balances is vital to the functioning of the three branches of government machinery, but it is not without constraints or defects. The system assumes a consensus on basic values and the legitimacy of each branch of government. It implicitly discounts the existence of partisan or ideological factions that would seek to employ one or more branches of government for illegitimate ends. It also downplays the risk of factionalism within each branch that could impede effective action. While specific mechanisms have been promoted to address these risks, there is lingering concern about whether its defects might be more serious than other forms of government, particularly in light of the hyper-polarization seen in some countries. Nevertheless, the system of checks and balances remains a vital feature of government machinery and a defense against the abuse of power by government on behalf of any particular interest group.

This essay explores the system of checks and balances among the three branches of government machinery, focusing on their perceived defects and discussing means for their enhancement. It begins with a description of the constitutional separation of powers among the legislative, executive and hierarchical judicial assemblies of almost all democratic countries. This is followed by a discussion of the checks or restraints placed on each branch of government by the others. Then, attention is turned to some of the perceived defects of this system, recognizing options for the enhancement of its effectiveness. The overall aim is to provide an informative overview of the system of checks and balances and to assess its efficacy as a means of protecting individual liberties and rights from the undue encroachment of either government or the social institutions on which it is dependent.

1.1. Background and Significance

"Exploring the System of Checks and Balances Among the Three Branches of Government Machinery" aims to understand how the system of checks and balances works among the three branches of government machinery in the USA. The government of the USA is divided into three branches: the legislative branch, the executive branch, and the judicial branch. To avoid the excesses of power, checks and balances are imposed on each branch so that it cannot dominate the government. This division of the government into separate branches is also a sign of democracy. The term "checks and balances" was used by James Madison in the Federalist No. 47 to denote the distribution and organization of different interests in society. The American system of checks and balances is based upon the Constitution of the USA, which took effect on 4th March 1789.

The Constitution is a juridical document that provides the main framework for the government and the system of checks and balances among its branches. It specifically describes the various powers and functions of the three branches of the government machinery as well as the checks on them. It imparts different powers to the three branches of government machinery and arranges their roles and functions so that the powers of no one branch are excessive and no branch can dominate the others. Each branch of the government machinery has some powers through which it has control over the other two branches. Such an arrangement for limiting powers and control over each other has been termed a system of checks and balances. The Constitution thus represents a compromise among the three branches of the government machinery and is the best explanation of American-style checks and balances.

A basic understanding of how the checks and balances system works among the three branches of government is provided for the USA, and the same is discussed for the Indian government for comparative analysis. The political importance of this study is to know how far the system of checks and balances has been successful in comparison to the brunt of differences among varying interests in society and how society is accommodated between the necessity of having a strong central government on the one hand and the evil consequences of such government machinery on the other.

1.2. Purpose and Scope of the Study

This study delves into a comprehensive examination of the system of checks and balances, with a particular emphasis on Congress, the Executive branch, and the judiciary. The overarching intent is to ascertain whether this system remains robust or has eroded in contemporary times. It endeavors to explore the underlying rationale in support of the thesis, discern the research question, and comprehend the limitations that shape the study.

The Constitution artfully delineates the powers of the federal government and safeguards American liberty by meticulously detailing the processes by which these powers can be enacted. This treatise aims to chronicle significant events that impacted this system and ultimately culminated in creating a Constitutional Presidency—to highlight its importance and necessity. “To make laws, it is necessary to have a government … with a Legislature, Executive and Judiciary” (Woolsey).

The first section illustrates the establishment of a rudimentary form of government in 1786—the Articles of Confederation—providing the Legislative branch with unbounded power. The ensuing chaos underscores the need to allocate equal powers to the other branches. The second section delves into major events that brought the Framers together to craft a new Constitution—an equal distribution of power to the three branches of government. The Constitution is considered the most vital governmental document globally, having been emulated in multiple other countries. The third section undertakes an analysis of significant events in Washington’s first term to showcase the gradual development of the Executive branch's powers, highlighting the delicate equilibrium established among the three branches.

2. The Concept of Checks and Balances

The principle of checks and balances is typically misrepresented as a principle of ‘separation of powers’ or arrangement of powers ‘among’ the three great departments of the government, i.e., legislative, executive, and judiciary, so that none may encroach on the others. A more cognitive view is that it is an arrangement involving the exercise of powers by separate instruments or organs located in separate institutions to restrain the possible abuse of such powers. Or, still more to the point, it is a system of allocation of powers among separate institutions endowed with the proper means and motive for enforcing a complementary interpretation of those powers. The key to an understanding of the concept is found in the meaning of the term “balancing,” that is, equalizing. The “checks,” which must naturally be placed entirely in the hands of the judiciary, so as to operate warranty with forces as they inevitably grow from within, some checks are intrinsic and some extrinsic.

The system of individual rights must equally be guarded against tyranny by the majorities, and this purpose must be effected by some rival institution, such as the Senate in the American case. A system of checks and balances suffices to control the abuse of public powers and to safeguard the rights of individuals against such abuse is very unlikely, as it underestimates both the significance of the potentially tyrannical powers that follow from any government and the wisdom of man’s designs of cutting up such powers whereby the whole becomes entirely different from the sum of its parts. The unbalancing of any ulterior designs can only be achieved by contriving sources of power not included in the designs themselves, or by subjecting the government to conditions entirely independent of its own capability for self-preservation. The most staggering criticism of the Federalist is that it fails to see the possibility of devising institutions through which a system of checks and balances itself may be balanced or made unstable.

Existentialism entails minimum ontological and even awareness of suspicion of considerations, whereby excesses become immanent in the principles of the comprehension itself, including an eventual public claim of balancing, ‘natural’ or ‘direct’ extra-institutional. The choice of the universalization as idea is tantamount to an existential dilemma, circling in on itself to be made fully aware of all its implications and eventual consequences or excluding its baleful anything transcendental. It can only avoid ‘insanity’ through the deceptiveness of producing a balanced reality. The final argument does not depend on historicity; it depends on the rigors of an existential situation.

2.1. Definition and Origins

The system of checks and balances is a Miranda, or safeguards, originating from the late 18th century to limit governments and prevent a concentration of power. Under checks, or control, officials may be removed from office and forbidden from holding public trust in the future if they act on the basis of bad motives, abuse their authority, or commit misconduct. Under balances, or regulations, government officials' powers are distributed to rival institutions, each having a certain level of independence. Most widely known and studied within political science and government studies, the system was famously implemented in the United States Constitution in 1789 to dampen the concentration of power in Congress. France's Declaration of the Rights of Man and Citizen of 1789 also attempted similar political designs after the overthrow of Louis XVI of France.

The design of checks and balances was envisioned toward the end of the Age of Enlightenment. Concepts preventing abuse of power circulated in Europe and beyond through geographical proximity, since many European scholars and institutions had close ties with American scholars. Ideas on mixed government had long been present in the classic scholarship of Aristotle, Cicero, and Polybius. These were adopted in social contracts theorists Thomas Hobbes and John Locke, who postulated the social contract as an original form of government. This contract must not be violated, or the ruler would lose legitimacy. They were further developed in the thought of Montesquieu, who regarded tyranny as an ever-looming danger. Montesquieu discouraged Republics from expanding and believed government powers must be separated by constitutional law in order to limit government. The development of these ideas was contingent on the emergence of a bourgeois class during the commercial revolution, the perception of growing absolutism and corruption, and the development of formal political philosophy.

The checks and balances system was contested in the Federalist Papers. On the one hand, it was a strong assurance within pluralist thinking. On the other hand, it relied heavily on a very specific cultural perception of the state of nature (innate wickedness of humankind) and a very specific understanding of humanions (human passions), leading to corruption.

2.2. Key Principles and Theoretical Underpinnings

At the heart of the concept of checks and balances resides a handful of profound principles recognized as essential to a properly functioning democracy. Contrary to easy assumptions, such as “every government has checks and balances,” there is a specific formulation of government that embodies these principles. First and foremost, a government must consist of three branches: one that makes laws, one that applies laws, and one that enforces laws. All three must be distinct from each other and function independently. Second, these three branches must have mutual counteracting, supervising, and regulating power over each other’s actions. There is no limit to how those powers can be designed: they can be economic, political, social, judicial, even cultural. Only the exercised influence matters. Third, in order to maintain the balance of power, the powers of each branch cannot be excessive. Since these powers must be equal, one branch should not have more powers than all the other branches combined. Excessive power can be here contemplated in terms of extent, intensity, and duration. In other words, one branch cannot dominate another either by grossly amassing more powers, by drastically negating or amplifying already existing powers, or by retaining control for an unreasonable amount of time. It is also considered highly dangerous for one individual to hold multiple powers attached to different branches. There would be no checks, hence no balance. Fourth, in instances where there is a danger of a conflict of interests (for example, when legislative power is combined with executive power), such branches must be separated clearly and unambiguously. This separation must be held and regarded as indispensable by all those who have influence in the government. Following the hypothetical policymaking process, there is no limit to the number of branches a government can consist of so long as they preserve the measures specified above. (Peterson, 2020)

In the specific case of the United States Constitution, it is proposed to reduce Bottleneckism to Lockeanism, which implies that the composition and the powers of the three branches of the U.S. government should be examined in terms of these principles. Astonishingly, what follows is that the U.S. government embodies the concept of checks and balances to perfection and contestations to the opposite are hereby demolished. The Legislature has the exclusive right to make laws. Each power regards the others as potential usurpers, thus maintaining the balance of power. (Epps, 2021)

3. The Three Branches of Government

The first constitutional democracy was designed in the United States in the late 18th century. In 1787, delegates of the states held a Constitutional Convention to address the weaknesses in the Articles of Confederation. They drafted a new constitution that created a stronger national government by dividing it into three branches: legislative, executive, and judicial. These three branches create a system of checks and balances that limits governmental power. (Ginsburg & Versteeg2021)

The Legislative Branch is established by Article I of the Constitution. The Constitution specifies that Congress shall be composed of a Senate and a House of Representatives. Each state is represented in the Senate by two senators, while the states have representation in the House by population. A Senate assents to treaties and presidential appointments, while the House begins revenue-related bills. Congress’s essential duties are to levy taxes and tariffs, borrow money, regulate commerce, produce a currency, declare war, raise and support armies, provide a navy, impose and punish piracy, establish post offices and roads, create a system of naturalization, and regulate intellectual property rights. (Peterson, 2020)

The powers of Congress are limited by the Constitution. For example, Congress cannot suspend the writ of habeas corpus, prefer one state’s ports over another, tax exports, or spend money without a law. Additionally, Congress cannot pass any ex post facto laws or any laws regulating religions or its free practice. Congress also has the power to restrict immigration. The legislative process involves different phases, including pre-bill, bill introduction, committee stage, house floor stage, conference committee stage, house approval, presidential action, and post-approval. Only about 10% of bills become law after going through Congress and receiving the signature from the president. (Peterson, 2020)

The second branch of government established by the Constitution is the Executive Branch, which is addressed in Article II of the Constitution. The executive branch enforces laws. The branch consists of the president, vice president, head of the executive departments (“Cabinet” members), and agencies, such as the FBI, EPA, and NASA. The president also serves as commander-in-chief of the armed forces and is responsible for making treaties and appointing ambassadors and other public ministers. The president may also appoint judges of the Supreme Court and other inferior courts. The branch is limited in that the president cannot declare war, cannot suspend the writ of habeas corpus, nor can deal with post roads. (Barr, 2020)

The Judicial Branch is addressed in Article III of the Constitution. The judicial branch interprets laws, decides if they are constitutional or not, and provides justice. The supreme court is the highest court in the land. Decisions made by the supreme court cannot be challenged. There are other inferior courts created by Congress. Judges of the supreme and inferior courts are appointed by the president and confirmed by the senate. Members of the judicial branch hold office during good behavior. The judicial branch may punish treason. However, a person cannot be convicted of crime of treason unless there is testimony of two witnesses to the same overt act or the confession in open court. Those convicted of treason against the United States may be punished by being imprisoned, fined, both, or if the person is of overseas birth, expatriation. (Lee, 2020)

3.1. Legislative Branch

The legislative branch, one of the three branches of government sanctioned by the American Constitution, voted on and approved the system of checks and balances to limit the powers of government. The checks and balances require that policy changes be approved by two separate branches of government, avoiding one branch of government’s ability to unilaterally make policy changes. The legislative branch is one of three branches of government created by the Constitution sanctioned in 1788. The Constitution also creates the executive and judicial branches of government. (Wurman, 2020)

The legislative branch is also known as Congress, comprised of the Senate and the House of Representatives. Senators serve six-year terms with each state having two senators. The Senate has 100 members, 51 Republicans, 47 Democrats, and 2 Independents. The House of Representatives has 435 members apportioned by population with each state guaranteed one representative. Congressional representatives serve two-year terms with the majority of House representatives being Democrats. Each representative plays a role in mandatory and discretionary spending, balancing the federal budget, oversight, legislation, and constituent services. (Ritchie, 2022)

Among the legislative branch's most important constitutional powers are those granted under Article I, Section 8. Congress may lay and collect taxes, duties, imposts, and excises; pay debts; provide for the common defense and general welfare of the US; regulate commerce; establish rules of naturalization and uniform laws; establish post offices and roads; promote science and arts; constitute courts; define crimes; declare war; and raise and support armies, navies, and militias. Congress must also support the army and navy, calling forth and training the militia, organizing, arming, and disciplining. Congress administers Washington, D.C. and territories, and may prohibit legislation from the states on certain matters. (Primus, 2020)

3.2. Executive Branch

Casting its gaze at the executive branch of government, it is observed to encompass a president, who is elected for a four-year term, and the vice president, who is elected for the same term. Both are elected indirectly through electoral colleges. The president is the head of the state as well as of the government and is explained to possess enormous powers. These powers consist of executive, legislative, judicial, military foreign affairs, and emergency powers. The president has the option to either veto proposed laws or to sign them. Furthermore, tremendous power is invested in the office of the president to appoint the chairman and the members of the federal reserve board. This power is further extended to the appointment of officers of the army and navy, such as the secretary of war, chief of the general staff and chief of staff of the army and chief of staff of the navy etc. Yet, as such a vital chain of the government machinery is vested with enormous powers, the scheme of checks and balances provides for forestalling any aberration and maintaining its on-going functioning. (Fortier, 2020)

Accordingly Congress, which in this respect is also the legislative branch, is empowered with the option to override a veto passed by the president. Appointments made by the president either regarding his cabinet or other appointments require confirmation by a majority of the senate. The president can also enter into treaties with foreign powers provided they are ratified by a two-thirds majority in the senate. The legislative branch also holds the power by a vote of two-thirds of both houses to remove the president from his post. The courts have the power of judicial review, which enables them to declare any executive action void in case it is found to be unconstitutional. Also, the vice president occupies a key position in this scheme of checks and balances. On the likelihood of vacancy occurring in the office of the president, the vice president assumes charge of the office and thereafter if the president is apprehended under impeachment, the vice president succeeds him in office.

Many government powers are vested in the office of the president. The president occupies a central position in the executive branch of the government machinery of the United States . Tempting as it is to think of the presidency as occupied by a single individual, in point of fact it can be viewed as the head of an executive branch of government which is very complex comprising of large number of officers and agencies. Taking an anthropocentric standpoint, the office of the president can be regarded as the nucleic center of the federal governmental operations. It follows, as a corollary, that the powers and responsibilities of the office of the presidency are stupendous. Purview on checks and balances in the machinery of government has to centre around examining how these subtler powers and responsibilities are circumscribed and maintained. (Price, 2020)

3.3. Judicial Branch

The U.S. Supreme Court, the highest court of the United States, heads the Judicial Branch of government. The Supreme Court consists of a Chief Justice and eight Associate Justices. These judges are nominated by the President and must be confirmed by the Senate. Once seated on the Supreme Court, they hold their positions for life, unless they choose to resign, retire, or are removed through impeachment. The Supreme Court is responsible for ensuring that laws passed by Congress are constitutional and that the President's actions are constitutional. The Constitution is considered the "supreme law of the land," and anyone who violates it is subject to prosecution. (Chemerinsky, 2023)(Schoenbrod, 2020)

The Judicial Branch also includes 94 District Courts, 12 Appellate Courts, and the U.S. Court of Appeals for the Federal Circuit. Each District Court's decisions can be appealed to an Appellate Court, and decisions made in U.S. Appellate Courts are appealed to the Supreme Court. The Supreme Court's decisions are final. The Judicial Branch has limited jurisdiction and cannot act unless a party brings a complaint. Congress has no power to take action on complaints unless the courts first make a ruling. (Bennett, 2020)

The authority of Judicial Branch courts to review the constitutionality of laws and acts is called "Judicial Review." The power to review laws is based on the concept of checks and balances. While Congress has the power to make laws, the courts also have a check on this power. It is the courts' responsibility to ensure that laws made do not violate the Constitution. This is a very important check since it acts to ensure that laws made by the popularly elected representatives do not infringe essential liberties of the people. (Wijaya & Nasran, 2021)

4. Mechanisms of Checks and Balances

4.1. Overview of Key Mechanisms Checks and balances are the mechanisms in the Constitution that authorize each branch of government to restrain some powers and functions of the other branches. Although this term is never explicitly mentioned in the Constitution, it prescribes such measures at every turn. The first article describes the legislative branch, making it the longest and most detailed. The legislative branch also possesses the most enumerated powers, including the power to tax, regulate commerce, declare war, and more. However, these powers are checked by the need for approval by the Senate and President. If a bill is not approved, Congress cannot implement it. The legislative branch also requires the President's consent on most matters. Congress can override the President's veto with a two-thirds majority vote in both houses. Legislative powers are checked by the executive branch through the use of the veto power. The President can check Congress after legislation is passed by vetoing it. Congress may then check the veto by a two-thirds majority vote of both houses. (Macey & Richardson, 2022)

The second article of the Constitution describes the executive branch. It vests the "executive power" in a president, who is elected by the people indirectly through electors. In addition to ordinary executive powers, the President has special legislative powers, such as the authority to veto legislation. This power consists of two checks on the legislative branch. Additionally, the President can nominate Supreme Court justices and federal judges, executive department heads, and ambassadors. These appointments must be confirmed by the Senate, which constitutes a vital check on the executive branch. (Barr, 2020)

The executive branch is also responsible for enforcing the law. This power may check Congress's lawmaking power if laws are not upheld. The Constitution includes provisions to eliminate an elected president: impeachment and removal. Impeachment is a two-step process. The House of Representatives can impeach a president with a two-thirds vote. The process is then sent to the Senate, which acts as the jury and judges the validity of the charges. The impeached person may be acquitted with a two-thirds vote or removed from office with a two-thirds vote. (Whittington, 2022)

The third article of the Constitution establishes the judicial branch. The judicial power of the federal government is vested in one Supreme Court and any other inferior courts that Congress may establish. With one short exception, the extent of federal court jurisdiction is decided by Congress. By default, federal judges are nominated by the President, but they can only be removed by Congress. This guarantees their independence from other branches, making them neither veto nor eminent powers. The judiciary checks the legislation by having the authority to review legislation and declare it void if contrary to the Constitution. As defined in Marbury v. Madison (1803), the law must conform to the Constitution; otherwise, it cannot be considered law. This precedent was established with a law that expanded federal power contrary to the Constitution. Legislative checks on the judiciary are limited because judges are not politically accountable and cannot be removed or punished by legislators. Nevertheless, the law can be changed to modify the understanding of the Constitution in subsequent cases. Additionally, Congress can impeach judges and terminate the courts altogether. The latter is a last resort with a negative connotation and extreme implications. There are talks of examining the legitimacy of federal judges, for instance, along the lines of FV Herman's Paperwork Reduction Act (PRA) of 1980. Nonetheless, significant changes would need to be enacted.

4.2. Examples of Checks and Balances in Action The Constitution's checks and balances have preserved the American system of government. No branch has become so dominant that it could do away with the others. All three branches regularly exercise their powers, potentials, and functions consistent with constitutional legitimacy. Nevertheless, some checks and balances are used more frequently than others. A check is recognized or exercised in an instance, usually prompted by circumstances or events. For example, the Constitution grants the President the authority to nominate ambassadors, Supreme Court justices, and other federal officials. Specifically, the President nominates justices, but they do not enter office until evidence of good moral character and potential conduct concerning the trust is determined. Assessing good moral character, fitness to trust, etc., is prerogative to be determined to the Senate with the advice and consent, i.e., a simple majority. The Senate commonly requires hearings before the Judiciary Committee, at which nominees are questioned in detail upon their understanding of the law and the Constitution and the limits of their power, among other matters. The outcome of such hearings is often indicative of the Senate's decision, either recommending confirmation or rejection. In the Judiciary Committee's fifty-eight-year history of judicial nominations, there has never been a failed recommendation. Indisputably, this is a powerful check since a nominee president must have the Senate's approval. (Macey & Richardson, 2022)

4.1. Overview of Key Mechanisms

The system of checks and balances is a foundational principle of American democracy. The Founding Fathers knew that freedom is precious to pursue and costly to preserve. Their experience with despotism persuaded them to ensure that no government anywhere could become too powerful or hostile to the people. Consequently, to provide a strong central government, the Constitution establishes three branches: the legislative, the executive, and the judicial. To preserve the delegated powers, these branches were made distinct and separate so that each could check the abuse of power by the others. While each function remains unique, the Framers were aware that each could also overlap, with check and balance mechanisms appropriately placed. The executive could check the legislative, the judiciary could check the executive, and so on. Additionally, the people can oversee each branch and stipulate certain checks in the Constitution and the Bill of Rights, with the provision that further checks could be ratified or amended.

Checks are special constitutional powers, while balances are built-in limits or barriers to the exercise of the functions involved. Congress may check the President's war power by the power of the purse. Wherever the balance between competing powers is upset, each can take advantage of the excess and thereby preserve itself. A great deal of experimentation has gone into getting the right balance, both in the allocation of powers and in the means of balancing the powers against one another so that none overreaches or usurps the realm of the others. Each step in this intricate dance is educational, as it exposes the day-to-day workings of government to public scrutiny. In essence, checks and balances provide for both accountability and responsibility in governance, so that officeholders fear the loss of their offices and thus the loss of the power they once exercised. (Bale, 2020)(Galbraith, 2022)

4.2. Examples of Checks and Balances in Action

The system of checks and balances is most visible through specific examples of governmental action. The founding fathers anticipated that certain actions would be likely to require action from more than one branch, and they used these likelihoods to create a balanced government. To illustrate how the checks and balances act, discuss the need for constituent service, a congressman’s request for information from an executive branch agency, and a congressman’s proposal for a bill to aid his district. These examples demonstrate the checks and balances in action.

The first check and balance involves a congressman’s awareness of larger changes in his constituents’ wellbeing. This congressman writes back to his constituents (the last check and balance is communication with the constituent) and discusses how he has become aware of poor living conditions in some of the public housing projects. These conditions include a lack of cleanliness and a rise in crime, especially in the outlying areas. The checks and balances come into play when the congressman describes how he intends to aid his constituents. He intends to request information from the executive branch concerning the clean-up of the areas under the jurisdiction of the Department of Housing and Urban Development. This is one of the checks where a division of responsibility occurs for governmental action. The request for information must come from the congressman and not the president. This is because the congressman is a part of the legislative branch and the president is a part of the executive branch of government. (Harris, 2022)

The next check and balance deals with his interest in urban renewal programs for the renewal of these areas. This is a further request from the executive branch agency. This renewal program is only partially under the jurisdiction of the housing agency. Other agencies, including the Department of Transportation and the Department of Health, Education and Welfare, are also involved. Again, because a congressman’s request for a plan of programs from the executive branch agencies would be acted upon by all of the departments involved, this action creates a check and balance. It is a division of authority between branches of government. It is given to the legislative branch and not to the executive branch, which would give the president greater influence over the plan. That plan would affect many different communities and areas throughout the nation and would question the fairness of the programs if they were solely a response to one congressman’s request. (Mazepus & Toshkov, 2022)

5. Challenges and Criticisms

Although the system of checks and balances was designed to regulate the exercise of power, its potential weaknesses in operation as far as the equipment is concerned have long been a central topic of debate. The Federalist Papers, a collection of essays by Madison, Hamilton, and Jay. Perhaps the fullest exposition of the principles of checks and balances and the separation of powers under them is the “Federalist No. 51” written by Madison. In its pages, Madison spoke with high confidence of the efficacy of the checks and balances among competing interests. The same confidence characterizes the latter chapters of the “Federalist No. 10” and the “Federalist No. 47,” and these three numbers are generally regarded as the most philosophic writings in the collection. At the heart of Madison's reasoning was the doctrine that human nature itself is the “institution” necessary for the safe-guarding of liberties. 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.

The Federalist Papers have regularly been interpreted as theorizing complex machinery in the form of checks and balances for the segregation of powers according to the functions of government (Pinderecer 9-23). Items of business would be the STUFF of government, and the machinery EARTHLY emotions and desires would ATTEND to the EDIFICATION by government. This would be the way to make government serve the governed. And hence the widespread interpretation of Madison as principally theorizing a design with which to METE OUT the unnatural passions of man, majority rule and majority tyranny against one another. By this reading, Madison is made to BECOME decidedly SEBD radical - radical in the classical sense of the word, in the sense of proposing machinery to CHANGE the very nature of man and the relations among men! (Macey & Richardson, 2022)

At the heart of the contemporary concerns over the system of checks and balances is the fact that the Constitution was framed under a set of conditions that are decidedly different from the prevailing conditions after it went into effect. The system of checks and balances was established by the U.S. Constitution of 1787, which created a Federal government in order to form a Union. The system proved inadequate and nowadays needs to be supplemented by devices of direct Popular Democracy that had originally been excluded from the government machinery established by the Constitution. The Federal government, which was never intended to become supreme, has now largely taken a larger constitutionally unwarranted domain, and it has supplanted many of the roles governments were once to fill. One consequence of this is that States and Cities of the Union compose an oligarchy of sovereigns where a handful of factions control at least a majority of votes and possessions in the Unions. Thus Domestic Tranquility and the Blessings of Liberty can no longer be reasonably PROMISED with the separation of powers as stipulated in the Constitution.

5.1. Potential Weaknesses in the System

The system of checks and balances among the three branches of the United States government is often lauded as a crucial safeguard against tyranny. It is celebrated for its intentional design to limit the power of any one branch, and its numerous intelligent and far-reaching efforts to thwart the majority and to guard the minority. However, while it has had a successful run over the last two centuries, it may also be susceptible to certain weaknesses. (Da Ros & Taylor, 2021)(Katz, 2024)

One concern is that the system inherently favors the status quo. The Founders of the United States made multiple decisions that inhibited government action, including the impossibility of a single person being able to take action. These decisions require a, b, c, d or four people; a, b, e or three people; and a only nine of thirteen would need to agree. Importantly, they imposed equal veto power of one sort or another on all branches of government. The political machinery is therefore one of extraordinary checks and balances, but with the checks very much outweighing the balances. Consequently, while a majority of people expressing a single, powerful interest cannot easily bring about their wishes, actions in opposition to the wishes of the majority cannot easily be taken either.

A second concern is that the system permits the survival and local triumph of a minority to the detriment of the fundamental rights of the majority. The checks and balances protect a minor interest, whether geographical and economic or something in the way of race or religion, bent on denying the fundamental rights of the majority. In such a case, the town of Salinas, California, would continue to deny municipal services to the residents of East Salinas who are on agricultural grounds and non-English speakers—such bias being sanctioned, at one time or another, by each of the three branches of national or Federal government.

Civil rights acts forbidding discrimination in municipal services or the use of the mail against race or national origin would themselves be deemed unconstitutional—such discrimination thereby becoming “fundamental.” But notwithstanding the innumerable and costly victims, the defect would be that much more difficult to perceive when it was also the only defect and the system continued to work quite well with a slant. In sum, while the system of checks and balances is often celebrated, it may likewise be criticized because it works with a flaw.

5.2. Contemporary Issues and Debates

In recent years, issues regarding the separation of powers and checks and balances have come to the forefront of American public discourse amid contentious partisan politics and increased polarization. Questions about whether the powers of the branches are too robust, too weak, or misallocated arise. Some recent controversies include the legitimacy of Supreme Court nominations or whether Congress can curtail executive power.

Recent actions by President Donald Trump, who frequently sought to expand the powers of the executive branch, amid fears of abuses of power have also revived these discussions. Since its founding, there have always been political actors who considered the existing distribution of power in the government either too weakly or too strongly allotted to specific branches. Thomas Jefferson, for example, believed the judiciary to be too powerful, writing that "the great object of my fear...is the Federal judiciary; a poor staff of lawyers...of doctors of law, who will steal the land of the farmers and give it to their abettors, banks, stockjobbers, &c." On the other hand, Alexander Hamilton argued the executive would be too weak. He remarked that "energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." (Barr, 2020)

The viability of checks and balances as originally constituted is also questioned. Lesser concerns involve the impact of the advent of modern weather forecasting, which has served to prevent cases like the 1933 hurricane that devastated the New England coast. Was it constitutional for the federal government to intervene in such local matters? More recent and larger concerns involve the balance between liberty and an effective response to terrorism or the balance of the executive and congressional powers regarding war powers in light of the increasing use of the military against terrorist groups.

References:

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