CHECKS AND BALANCES

CHECKS AND BALANCES. The term "checks and balances" is often invoked when describing the virtues of the Constitution of the United States. It is an Enlightenment-era term, conceptually an outgrowth of the political theory of John Locke and other seventeenth-century political theorists and coined by philosophes sometime in the eighteenth century. By the time the U.S. Constitutional Convention met in 1787, it was a term and a concept known to the founders. To them it meant diffusing power in ways that would prevent any interest group, class, or region, singly or in combination, to subvert the republic of the United States.

James Madison described a republic as "a government which derives all its power … from the great power of the people." Checks and balances were indispensable, he said, because it was vital to keep access to the full authority of the government "from an inconsiderable proportion [of the people], or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might claim for their government the honorable title of republic" without its substance. Thus, he cautioned, it was necessary to check vice with vice, interest with interest, power with power, to arrive at a balanced or "mixed" government.

The balanced government derived from the brilliant compromises the founders drafted. First and foremost, a tyrannical federal government would be checked by limiting its sovereignty, granting sovereignty as well to the individual states. A host of crucial compromises followed this key one: federal power balanced among legislative, executive, and judicial branches; federal executive authority, in the form of a president elected every four years and accorded a veto, but with legislative ability to override; direct election of a president, but filtered through an electoral college of state representatives; legislative power checked in class and democratic terms by an elite upper house (Senate) pitted against a popularly elected House of Representatives; and a distant but powerful national judiciary headed by the Supreme Court, always appointed to life terms and understood from its inception to possess the power of judicial review over both executive and legislative actions.

Together this combination of checks and balances was meant to sustain the republic at all times, even in periods of great national stress. No political group, economic or social class, or region possessed the access to power capable of dominating all others in this most successful of "mixed" governments—which is not to say that all of the compromises made by the founders were just in themselves, as in the case of explicitly recognizing the constitutionality of slavery in an effort to placate some mostly southern delegates.

The secret of the system of checks and balances lay in its inherent flexibility of interpretation over the generations and the ability of the Constitution to mold itself to the times even as it retained its inherent invincibility as the law of the land. By the late twentieth century some Americans feared that this flexibility was a grave weakness, encouraging permissiveness in the national courts and a penchant for aggrandized reform in both the executive and legislative branches. These critics, adhering to a doctrine of strict interpretation and a significant lessening of constitutional flexibility, have sought as a re-course to pin down the founders' "original intent" in order to render the U.S. Constitution less open to interpretation or adaptation over time.

CHECKS AND BALANCES

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