One of the most innovative aspects of the Constitution is the way in which the federal government was structured to control its power.
Before the Constitution, governmental power was typically vested in one person or a small ruling council. The structure employed in the Constitution was just the opposite: Power was spread across three branches of the new government.
But, by dispersing power, another problem was created: how to ensure that one branch did not overpower the other two?
The answer was a system of “checks and balances.”
On this day in 1788, The Federalist No. 51, titled “The Structure of the Government Must Furnish the Proper Checks and Balances between the Different Departments,” was published. In it, James Madison (or, possibly, Alexander Hamilton) set forth the rationale for this system that is so basic to our Constitution.
Madison initially observed that unfettered governmental power can only conflict with personal liberties, and not support them. To protect those liberties, he believed a system was necessary to protect autonomy among government departments.
“Giving to those who administer each department, the constitutional means, and personal motives, to resist encroachments of the others,” was essential, said Madison.
By “personal motives,” Madison sought to use an individual’s ambition to “balance” the government. While many political philosophers of the time sought to curb personal ambitions, Madison’s unique approach sought to use them for good; the end result being government would actually control itself.
Madison suggested that to avoid one branch overpowering the others, each branch must be given the power to counteract manipulation by the other branches. In his view, the best way to achieve that was to differentiate the way in which the members of a particular branch attain their offices.
This can most easily see this in the way officeholders were to be elected. Representatives were elected by the people; senators by state legislatures (later by direct elections); and the president by the Electoral College. Furthermore, the length of their terms further strengthens this independence.
Additionally, within the legislative branch, the bicameral structure promotes “ambition” between the Senate and the House, which we have recently seen can result in congressional deadlock.
A system of checks and balance between the legislative and executive branches would use each branch’s “ambition” to check the ambition of the other. As Madison famously wrote, “Ambition must be made to counteract ambition.”
Madison believed that the competing “ambitions” of the legislative and executive branches—and the people in them—could be used to protect the judicial branch from being overpowered. Madison saw the judiciary as having “peculiar qualifications”: at is, goals and objectives different from those of members of the legislature and executive branches.
Madison’s approach to protecting the judicial branch was twofold.
First, both the legislative and executive branches have to participate in the selection of members of the judiciary: the executive by nomination and the legislative by confirmation. In effect, they had to assume some basic level of cooperation. Second, because of life tenure, members of the judiciary would come to understand the value of their independence of the other two branches.
Having addressed how officials attained office, the next challenge for Madison was the protection of liberties while those officials were in office.
Regarding the executive and the judicial branches, the legislature was given the powers of impeachment and conviction. But what about the legislature? What is the “check” on its members?
It was and is the possibility (and hope) of re-election that keeps representatives closely attuned to the people they represent. This is further strengthened by the shortest election cycle under the Constitution. As many former representatives and senators have unhappily discovered, the power of “We the People” is the ultimate check on the legislative branch.
Finally, our liberties were protected from governmental corruption by the sovereignty shared between the federal and state governments.
While Madison’s system of checks and balances may not be perfect, it has functioned well for over 225 years in protecting our liberties.
Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.
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