Checks and Balances

AuthorSotirios A. Barber

Page 342

In its precise meaning, "checks and balances" is not synonymous with SEPARATION OF POWERS; it refers instead to a system of rules and practices designed to maintain the separation of powers. The executive VETO POWER is considered part of this system, along with the power of JUDICIAL REVIEW, the IMPEACHMENT power, and other powers available to any of the branches of government for combating the encroachments of the others.

JAMES MADISON formulated the American theory of checks and balances in response to the ANTI-FEDERALIST charge that the proposed Constitution would contain an overlap of governmental functions, violating the principle of separated powers. Expressing a pessimistic view of human nature, he argued in THE FEDERALIST #10 that the way to avoid majority tyranny lay in creating a large national community of diverse and numerous economic interests, not in statesmanship or in religious and moral constraints. In The Federalist #47?49 Madison went on to argue that neither sharply drawn institutional boundaries nor appeals to the electorate could be relied upon to maintain the separation of powers. Both methods presupposed the virtues of official lawfulness and electoral nonpartisanship, virtues whose unreliability was attested by experience. Because such "external checks" were ineffective, said Madison in The Federalist #51, maintaining the separation of powers would require "internal checks" that linked the office-holders' personal ambitions to their duties. Officials would defend their constitutional prerogatives if they felt that doing so were a means to furthering their personal ambitions. "[A]mbition checking ambition"?not virtue?was the key to constitutional maintenance. And effective checks required each branch to have a hand in the others' functions. For example, the veto is the President's hand in the legislative function.

Madison knew, however, that this partial blending of

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power did not go far enough. Power might still be concentrated if all these branches were united in one interest or animated by the same spirit. Thinkers from Aristotle to MONTESQUIEU had taught that constitutions could be maintained at least partly through a balance of social groups such as estates or economic classes. But theorists with democratic pretensions could not institutionalize such social divisions. The problem for the Framers was to prevent a single interest from predominating in a society that had few...

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