The Constitution was devised with an ingenious and ...



CHECKS AND BALANCES

Our founding fathers were men from different colonies who had a goal of organizing a new government, drastically different from the European countries which had been home to most of the emigrants. Early United States history tells us that the colonists came to America seeking religious freedom, among other things, and to escape what many perceived as tyranny by the governments of their homelands—primarily England.

After years of living in the “New World” and trying to establish a reasonable political solution to increased taxation and other burdens place upon them, the colonists realized that severing ties to the “Old World” was the only solution. The general consensus was that this new government would address the intolerable policies they had been subjected to and be carefully designed to allow that no one part of the governing body to become too powerful.

The result of this concern was that our forefathers devised a plan for the new United States government which was firmly based on the idea of separation of powers. The system depended on the government being divided into different independent branches, each with its own responsibilities and powers. We now call this the separation of powers doctrine. And an essential part of this new government was a system of checks and balances to prevent any one part of the government from becoming overly powerful, undermining the others. The very culture of the United States continues to rely on this idea of checks and balances, quite obviously with the Federal government, but also with the internal state governments, and the relationship between state and Federal.

The Constitution, the most basic plan and law of our country, lays out the separation of powers and the system of checks and balances in Articles I, II, and III. These Articles set up the structure of three branches of government, the Executive, Legislative, and Judiciary branches. While they were separate and independent as to their function, there was a coordination built in to ensure the smooth operation of the government while having built in limits, preventing any “power grabbing” by one branch.

The Legislative branch of the government consists of two houses of Congress, the Senate and the House of Representatives. The Executive branch is considered to be the President, and the Judicial branch is, of course, the United States Supreme Court and the lower Federal Courts. In actuality, what turned out to be a rather simply explained system, was formed by a complicated set of expectations and details to ensure this checks and balances. For instance, the Legislative branch has almost the sole power of the government’s money. The forefathers were well aware of the problems that ensue when the people themselves have no say-so as to how their money is spent.

The Legislative branch was also designed so that there were two distinct “houses”—the Senate and the House of Representatives. The House, loosely based on the House of Commons in England, would be based on population, the more populous states getting more representatives. But, in another type of balancing plan, the Senate would consist of two Senators from each state, giving the states equal votes in that portion of the legislature.

It is easy to briefly summarize the three branches and their powers, but much more complex to describe the interactions and powers to block or limit actions of the other branches—i.e. checks and balances. The following is a table of some of the main responsibilities of each branch of government:

|Legislative |Executive |Judicial |

|Also known as Congress |Preserves, protects and defends the |Determines which jurisdiction a given case falls under |

|Makes all laws. |Constitution |Decides when a law is unconstitutional |

|Controls all the money; taxes, |Faithfully executes the laws of the |Has the responsibility to administer Constitutional law and to |

|borrows, and sets the budget (within |United States |apply it to constitutional disputes |

|certain limits) |Executes the instructions of Congress |Determines the disposition of prisoners |

|Has sole power to declare war. |May veto laws (but the veto may be |May legally compel testimony and the production of evidence as |

|Oversees, investigates, and makes the|overridden by Congress by a 2/3 |the law provides. |

|rules for the government and its |majority). |Judges and competently administers uniform policies via the |

|officers. |Executes the spending authorized by |appeals process, but gives discretion in individual cases to |

|Confirms the heads of the executive |Congress |low-level judges. (The amount of discretion depends upon the |

|branch (cabinet, etc.) |Executes the instructions of Congress |standard of review, determined by the type of case in question.)|

|Confirms federal judicial |when it declares war or makes rules |Oversees and administers members of the judiciary |

|appointments. |for the military | |

|Ratifies treaties. |Declares states of emergency and | |

|Originates and tries cases of |publishes regulations and executive | |

|impeachment of judges or other |orders | |

|officials. |Appoints judges and other executive | |

| |heads with the advice and consent of | |

| |the Senate | |

| |Has the power to grant pardons for | |

| |crimes against the United States | |

What were some of these checks and balances believed so important to individual liberty Several are listed below:

• HOUSE (people’s representatives) is a check on SENATE - no statute becomes law without its approval.

• SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)

• EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.

• LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.

• LEGISLATIVE has further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.

• EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.

• EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.

• LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.

• EXECUTIVE has further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.

• JUDICIARY is check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.

• LEGISLATIVE (Congress) has restraining power over JUDICIARY, with constitutional authority to restrict extent of its jurisdiction.

• LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.

• EXECUTIVE (President) is check on JUDICIARY by having power to nominate new judges.

• LEGISLATIVE (Senate) is check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.

• LEGISLATIVE is check on JUDICIARY - having control of appropriations for operation of federal court system.

• LEGISLATIVE (Peoples Representatives) is check on both EXECUTIVE and J U DICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.

• LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.

• The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitutional Amendments.

• LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.

• It is the PEOPLE who have final check on both LEGISLATIVE and EXECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.

Checks and Balances: The Constitutional Structure for Limited and Balanced Government

This simple, yet complex system of government has not only proven to be an ingenious design which more than accomplished what was intended, but it has stood the test of over 200 years. As the times changed, the three branches of government have, each in its own way, changed as well. The country has grown in population and land area exponentially. The United States has grown from the “rag tag” little group of colonies into a world power. While arguable diverse in its composition for its time, the United States has turned into a most amazing “melting pot” of peoples and cultures, socially and politically.

Keeping the system in “balance” has not always been a smoothly running operation. One example is the Civil War, when eleven states decided to collectively remove themselves from the United States central government. The brutal war that followed this secession was the last time such an event took place in our history, but the cost was thousands of lives and emotions that are passed down through the generations.

A particularly pertinent issue is the power of the executive branch regarding war powers and the dispatch of troops. Since the War in Vietnam, vocal opposition to the President having such powers has been constant. The money to fund the troops is controlled by the Legislature, which sometimes prompts a debate when Congress tries to use the “power of the purse” to limit the President’s power as Commander in Chief.

Another example of a challenge to our “checks and balance” system was the civil rights movement of the 1960’s. In many instances, the Federal government had to step in when an individual state was not complying with the Constitutional guarantee that all citizens are equal and are to enjoy equal rights. Federal troops were sent to Mississippi, Arkansas and other states to escort students into integrated schools, against the wishes of the state governments.

This was an issue of the power of the state as an entity in and of itself and the power of the Federal government to usurp that power. This theme has presented itself down through the years. While planning the Constitution, the delegates were very attuned to the idea of maintaining the rights of each state, but under a Federal government, which would make the country stronger and more efficient. Early in our country, each state had its own very different laws, different money, and a lack of communication with the other states. This made travel and commerce a nightmare. The forefathers were well aware that there must be a system in place to reduce these differences—up to a point. And, as a small, emerging country, a strong central government was essential as a signal to the world of our strength and cohesiveness. Through all of the various controversies surrounding the states’ rights versus the power of the Federal government, the system remains intact. While the states’ particular issues have changed, the ongoing push and pull between the Federal government and the states goes on.

The “checks and balances” system has remained essentially the same as its inception, but has also flexed and adapted with the times. The Judicial Branch, while remaining separate from Congress and the President, has changed through the years, adopting and staunchly upholding the rights of the oppressed, while in the past upheld the right of people to own slaves. The courts have come under some accusations lately by those who say their power is being misused, or more particular “overused, and that the courts are becoming activists in certain areas.

In the modern world, each Congressperson, and each Senator is under scrutiny as never before. These are different times than when an elected official got on a train to Washington or to the state capital, only coming back for the occasional fund raiser or election event. Everything is in the public eye. Every vote is flashed across the news, if not the internet.

In the opinion of this writer, it would be difficult, if not impossible to come up with a plan that might be more efficient than the separation of the branches of government and the built in “checks and balances.” There has not been another government which works more efficiently while reflecting the wishes of the people and the changing times. This writer could not come close to suggesting anything superior.

References

Beard, Charles A. American Government and Politics. 10th ed. New York: Macmillan Co., 1949.

Burnham, James. Congress and the American Tradition. New Brunswick, NJ: Transaction Publishers, 2003.

Checks and Balances: The Constitutional Structure for Limited and Balanced Government. National Center for Constitutional Studies. 2009

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

Three Branches of Government. 2008.

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