Checks & Balances

America’s Founding documents reveal the Framer’s evident understanding of the system of Checks and Balances. Although the avocation of checks and balances had existed throughout antiquity; never had a nation been initiated successfully under these circumstances. The world watched as America actualized to become a global superpower that it is today. To achieve this, the Framers needed to convince the majority that a national union would not devolve to tyranny. Thus, under the pseudonym Publius, James Madison, Alexander Hamilton, and John Jay worked to advocate public interest in national union; promising a powerful yet restrained source of authority capable of securing against foreign invasion, domestic factions; yet one that represented the interests of its citizenry.

Black’s Law Dictionary refers to the term Separation of Powers as “[t]he division of governmental authority into three branches of government — legislative, executive, judicial — each with specified duties on which neither of the other branches can encroach,” (Garner, B, p. 1639). Bryan Garner notes that “the first tentative formulation of the proposition that this is the most desirable form appeared in John Locke’s Two Treatises of Government (1689) and was later elaborated more fully in Montesquieu’s Spirit of Laws (1748),” (Garner, B., p. 1639). On Checks and Balances, Black’s Law describes “[t]he theory of governmental power and functions whereby each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government,” (Garner, B., p. 298).

History of Balance

Man was provided an initial reference that ought to be considered when undergoing any endeavor. As prophesized in the Old Testament by the prophet Isaiah, “[f]or a child will be born to us, a son will be given to us; And the government will rest on His shoulders; And His name will be called Wonderful Counselor, Mighty God, Eternal Father, Prince of Peace.” (Isaiah 9:6; NASB). Isaiah adds that “[t]here will be no end to the increase of His government or of peace, On the throne of David and over his kingdom, To establish it and to uphold it with justice and righteousness From then on and forevermore. The zeal of the LORD of hosts will accomplish this,” (Isaiah 9:7; NASB). A bit more context on Isaiah. This should have been added, but will find suitability here. Isaiah not only prophesized the coming of Jesus, but also presupposed a continuous state of division that would be encountered between the jurisdiction of worlds. Man's government is itself consistently directly connected to God, thus ought to share a balance between each authority. Further, synthetic governance also must be shared in its authority as to not infringe on the jurisdiction of man’s presupposed natural law initiated in Genesis. Natural law presupposes man, therefore every individual exists divided between natural law and the law of man. The Founders utilized this divine and historic concept of distributed powers when crafting our Founding documents, present in the Articles of Confederation, and the U.S. Constitution.

Authors Otis H. Stephens, Jr., professor emeritus of political science and law at the University of Tennessee; John M. Scheb II, professor and head of political science at the University of Tennessee; and Colin Glennon, assistant professor of political science at East Tennessee State University, note that, “[b]y 1786 it was widely recognized that the Articles of Confederation were in serious need of repair, if not replacement. This recognition was reinforced by a historic confrontation that occurred in Massachusetts during late 1786 and early 1787. Daniel Shays, a veteran of the Battle of Bunker Hill, led a ragtag army composed primarily of disgruntled farmers in a rebellion against state tax collectors and courts,” (Stephens, O., p. 6). The goal of Shays’s Rebellion was to “prevent foreclosure on numerous farms whose owners were bankrupt,” (Stephens, O., p. 6).

Therefore, in 1786, “James Madison and Edmund Randolph, initiated a process for convening a meeting to which all the states were invited for the purpose of developing ways to resolve growing problems of interstate commerce,” (Stephens, O., p. 6). To best represent the constituency per each state, “[t]he states chose a total of seventy-four delegates to the Constitutional Convention of 1787. The fifty-five delegates who ultimately attended were drawn, for the most part, from the nation’s elite: landowners, lawyers, bankers, manufacturers, physicians, and businessmen,” (Stephens, O., p. 6).

The U.S. Constitution was “adopted in 1787, ratified the following year, and amended twenty-seven times since” resulting in a fortified and resilent document capable of preserving man’s inherent rights, (Stephens, O., p. 4). While the efficacy of federalism can be argued by its citizenry, the Founders agreed that a separation of states was far too dangerous; disbanding the Articles of Confederation. Publius, the works of James Madison, Alexander Hamilton, and John Jay, was instrumental in the coercive shift that brought the public to favor union over individual states. But a nationalized union is capable of producing a tyranny if let unchecked. Thus, the Founders would build a system that superseded all other authorities, while combatting against itself and precluding tyrannizing its citizenry.

Checks & Balances

A system of Checks and Balances was invoked by the Founders to ensure that government would represent the needs of the people above its own. Stephens describes the Framers as “men of wealth and learning;” thus giving them an advantage during the time period that America was founded. It would be the responsibility of these “men of wealth” to invoke a system of government that would represent the needs of the people.

Moreover, “Locke’s ideas also greatly influenced the delegates to the Constitutional Convention a decade later. Indeed, the Constitution they drafted can be viewed as a formal legal ex-pression of the social contract. The Lockean ideas of natural rights, limited government, and ordered liberty pervade the document created at Philadelphia,” (Stephens, O., p. 8).

Stephens writes that “[t]he Constitution has been amended seventeen times since the ratification of the Bill of Rights. Undoubtedly the most important of these amendments are the Thirteenth, Fourteenth, and Fifteenth, ratified in 1865, 1868, and 1870, respectively,” (Stephens, O., p. 20).

Term limits were an essential component of just governance, according to the Founding Father’s original perspective on the subject. Alexander Hamilton recorded in the Federalist Paper No. 59 that “The senators are to be chosen for the period of six years: there is to be a rotation, by which the seats of a third part of them are to be vacated, and replenished every two years; and no state is to be entitled to more than two senators: a quorum of the body is to consist of sixteen members,” (Hamilton, A., p. 308). Hamilton added “[b]ut with regard to the federal house of representatives, there is intended to be a general election of members once in two years,” (Hamilton, A., p. 309).

Thus, state representation would preclude depravity. “I shall not deny that there is a degree of weight in the observation, that the interest of each state to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the state legislatures,” (Hamilton, A., p. 309).

The Courts

The Founders knew that a separation of powers ought not only be conducted within government, but also within the courts. This would ensure that America’s justice system was equal in caliber to its government.

Alexander Hamilton wrote in the Federalist Paper No. 83 that “[i]t is true, that the separation of the equity from the legal jurisdiction, is peculiar to the English system of jurisprudence; the model which has been followed in several of the states. But it is equally true, that the trial by jury has been unknown in every instance in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity,” (Hamilton, A., p. 438).

National Government

In the Federalist No. 59, Alexander Hamilton reminds us the importance of term limits and the establishment of a quorum to consider the votes of Congress. Hamilton writes that “[i]t ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them” (Hamilton, A., p. 308).

In the Federalist No. 66, Alexander Hamilton wrote that “[a]n absolute or qualified negative in the executive, upon the acts of the legislative body, is admitted by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former,” (Hamilton, A., p. 342).

Legislation

In the Federalist No. 73, Alexander Hamilton added that “[i]t is evident that, without proper attention to this article, the separation of the executive from the legislative department, would be merely nominal and nugatory,” (Hamilton, A., p. 382).

Hamilton opines further that, “[t]he legislature, on the appointment of a president, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating upon his necessities, nor corrupt his integrity by appealing to his avarice,” (Hamilton, A., pp. 379, 380).

Executive Branch

Hamilton further contends in the Federalist No. 73 that “[i]t is there provided, that ‘the president of the United States shall, at stated times, receive for his service a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.’ It is impossible to imagine any provision which would have been more eligible than this,” (Hamilton, A., p. 379, 380).

Hamilton wrote of “the qualified negative of the president upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, which will have the effect of preventing their becoming laws, unless they should afterwards be ratified by two-thirds of each of the component members of the legislative body,” (Hamilton, A., p. 379).

Judicial Branch

In the Federalist No. 79, Alexander Hamilton asserted on the Judiciary’s influence upon the Executive, that “[n]ext to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. The remark made in relation to the president, is equally applicable here. In the general course of human nature, a power over a man’s subsistence amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resource on the occasional grants of the latter,” (Hamilton, A., p. 408).

Alexander Hamilton writes in the Federalist No. 81, that “[t]he supreme court is to be invested with original jurisdiction only “in cases affecting ambassadors, other public ministers and consuls, and those in which A STATE shall be a party,” (Hamilton, A., p. 417).

Critical Assessment

Alexis Tocqueville wrote of America’s novel experiment in the early 1800s. Tocqueville did not advocate a state of democracy, no matter what system of checks and balances it imposed. Tocqueville believed that democracy leads to subservience to the majority. Tocqueville wrote that “[a]s men grow more alike, each man feels himself weaker in regard to all the rest; as he discerns nothing by which he is considerably raised above them, or distinguished from them, he mistrusts himself as soon as they assail him. Not only does he mistrust his strength, but he even doubts of his right; and he is very near acknowledging that he is in the wrong, when the greater number of his countrymen assert that he is so. The majority do not need to constrain him—they convince him. In whatever way then the powers of a democratic community may be organized and balanced, it will always be extremely difficult to believe what the bulk of the people reject, or to profess what they condemn, (Tocqueville, A., p. 372).

Effects on Contemporary American Government

The system of restraints remains partially effective. Article IV’s Supremacy Clause affects every law drafted within the boundaries of this nation; acting as a barrier of recognition for inherent sovereignty and natural law. But other aspects of the U.S. Constitution has devolved to the interpretation of whomever declares its meaning. This crude amalgam of originalist truth and modern cultural opinion has caused a drift in the efficacy of the Constitution in the protections of various inherent qualities—supplanted by other culturally influenced interests. Nonetheless, America retains the world’s longest unchanging Constitution. Yet, through judicial activism and radical contemporary interpretation originalism must now bear the weight of its modern critics.

The Apostle Paul reminds us in the New Testament that “[f]or we died and were buried with Christ by baptism. And just as Christ was raised from the dead by the glorious power of the Father, now we also may live new lives,” (Romans 6:4; NLT). The obligation of the power of Christ is far more potent than the obligation to engage in self-enriching behavior imposing direct opposition to God’s intentions. The contemporary man ought to place God above all his own ambition, for without provision, he is lost; incapable of sustaining prosperity.

Conclusion

In sum, government was tasked with the duty of being a supreme authority; and obligated to represent the interests of its constituency; whilst simultaneously remaining consistently divided internally against itself. The Framers sought to appease both proponents of the union and those resistant to compliance. Thus, America is a nation both founded on, (and created with the intention to prevent), factionalized dissent.

Bibliography

Garner, B.A. (2021). Black's Law Dictionary, Eleventh Edition. St. Paul, MN: Thomson Reuters.

Tocqueville, A. (1825). Democracy in America: Volumes I and II

Hamilton, A, et al. (2001, 2011). The Federalist. Liberty Fund, Inc.

Stephens, O., et al. (2008, 2012, 2015). American Constitutional Law, Volume I: Sources of Power and Restraint: Sixth Edition. Cengage Publishing.