checks and balances essay

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Checks and Balances

By: History.com Editors

Updated: July 27, 2023 | Original: November 17, 2017

The system of checks and balances in government was developed to ensure that no one branch of government would become too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches of the U.S. government—legislative, executive and judicial—and includes various limits and controls on the powers of each branch.

Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention , but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome , the Greek statesman and historian Polybius identified it as a “mixed” regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke  and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch , the executive branch and the judicial branch .

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison  wrote in the Federalist Papers , of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

• The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.
• Congress has the power of the purse, as it controls the money used to fund any executive actions.
• The president nominates federal officials, but the Senate confirms those nominations.
• Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.
• In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts
• By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the  House of Representatives  and the  Senate , or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).
• Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes—and congressional overrides of those vetoes—tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions. 

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for in the U.S. Constitution, but rather implied by Article II, which states that the president “shall take Care that the Laws be faithfully executed.” Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury. 

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR’s New Deal .

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt’s proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

This Is How FDR Tried to Pack the Supreme Court

When his New Deal legislation kept getting struck down, FDR proposed a law targeting justices over the age of 70.

War Powers Act

What Is the War Powers Act? The War Powers Act—officially called the War Powers Resolution—was enacted in November 1973 over an executive veto by President Richard M. Nixon. The law’s text frames it as a means of guaranteeing that “the collective judgment of both the Congress and the President will apply” whenever the American armed […]

All Amendments to the US Constitution

Since the Constitution was ratified in 1789, hundreds of thousands of bills have been introduced attempting to amend the nation's founding document. But only 27 amendments to the U.S. Constitution have been ratified.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon , who called it an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military. 

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations “police action.” Presidents Kennedy , Johnson and Nixon each escalated the undeclared conflict during the Vietnam War .

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act’s components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal , the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

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Checks and Balances, The Oxford Guide to the United States Government . Baron de Montesquieu, Stanford Encyclopedia of Philosophy . FDR’s Losing Battle to Pack the Supreme Court, NPR.org . State of Emergency, New York Times , Pacific Standard , CNN . 

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The first amendment, historic document, federalist 51 (1788).

James Madison | 1788

On February 8, 1788, James Madison published Federalist 51—titled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” In this famous Federalist Paper essay, Madison explained how the Constitution’s structure checked the powers of the elected branches and protected against possible abuses by the national government. With the separation of powers, the Framers divided the powers of the national government into three separate branches: a legislative branch (called Congress), an executive branch (led by a single President), and a judicial branch (headed by a Supreme Court). By dividing political power between the branches, the Framers sought to prevent any single branch of government from becoming too powerful. At the same time, each branch of government was also given the power to check the other two branches. This is the principle of checks and balances. Madison and his fellow Framers assumed that human nature was imperfect and that all political elites would seek to secure greater political power. As a result, the Framers concluded that the best way to control the national government was to harness the political ambitions of each branch and use them to check the ambitions of the other branches.

Selected by

The National Constitution Center

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. . . .

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. . . .

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. . . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. . . .

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

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Home — Essay Samples — Law, Crime & Punishment — Constitution — The Constitution’s Checks and Balances

The Constitution’s Checks and Balances

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Published: Dec 12, 2018

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U.S. Constitution.net

Checks and balances in the constitution, separation of powers.

The U.S. Constitution establishes three branches of government: executive , legislative , and judicial . The President leads the executive branch, enforcing laws, commanding the military, and conducting foreign policy. The legislative branch, composed of the House of Representatives and the Senate, makes up Congress. Congress creates laws, declares war, raises and collects taxes, and performs other key functions. The judicial branch, headed by the Supreme Court, interprets the laws and ensures they align with the Constitution through judicial review.

This separation prevents any single branch from overwhelming the others. The President can veto laws passed by Congress, but Congress can override the veto with a two-thirds vote. The President appoints judges, but these appointments must be confirmed by the Senate.

Chevron Deference allows executive agencies to interpret vague laws, potentially leading to an overreach of executive power. The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo , may reevaluate Chevron Deference's impact.

The Appointments Clause mandates that officials with significant power must be nominated by the President and confirmed by the Senate, ensuring accountability through elected representatives.

In-house tribunals, used by agencies for adjudication, often operate without established rules and lack the impartiality of real courts. Without juries, these tribunals provide no check on judges and prosecutors.

The Major Questions Doctrine reassures us that Congress must clearly authorize significant economic or political regulations. This doctrine was pivotal in Biden v. Nebraska , where the Supreme Court ruled against the Department of Education's attempt to erase student loan debt under the HEROES Act.

Iraq's Constitutional Court has moved away from being a legal safeguard to becoming a political tool, weakening its federal system. This misalignment is evident in the unconstitutional establishment of courts and recent rulings that tilt balance towards dominant factions.

Checks and balances remain central to preventing tyranny. The U.S. Constitution offers mechanisms to pull back on any one branch's power, and it's our responsibility to use these tools well and preserve the intended equilibrium.

The presidential veto allows the President to reject legislation passed by Congress, preventing it from becoming law unless Congress can override the veto with a two-thirds majority in both the House and Senate. This ensures that no hasty or ill-considered legislation becomes law without considerable support and deliberation.

Congressional oversight acts as a pivotal check on the executive branch. Through hearings, investigations, and the power of the purse, Congress can monitor, influence, and restrict the activities of the executive branch. The House Oversight and Reform Committee can summon executive officials to testify under oath, ensuring transparency and accountability.

Judicial review allows the judiciary to interpret the Constitution and overturn laws or executive actions that are found to be unconstitutional. By scrutinizing the executive and legislative branches, the judiciary safeguards civil liberties and maintains the integrity of the Constitution.

The Senate's role in confirming presidential appointments prevents any unilateral imposition of power within the executive branch. The power of impeachment and removal exemplifies the reciprocal checks among the branches. The House of Representatives can impeach federal officials, while the Senate conducts the trial and can remove them from office with a two-thirds vote.

The power to declare war is reserved explicitly for Congress, preventing the executive from unilaterally engaging in military conflicts without legislative approval. Beyond these constitutional mechanisms, various laws and regulations further embed checks into the system, such as the War Powers Resolution of 1973 and the Budget and Impoundment Control Act of 1974 .

Effective checks and balances require active participation and vigilance from all three branches, as well as from the American populace. The Founding Fathers designed this system to be dynamic, adaptable, and resilient, ensuring that no single entity could dominate the governance of the Republic.

Threats to the Separation of Powers

One significant contemporary threat to the separation of powers is executive overreach, exemplified by the growth of the administrative state. Executive agencies have accumulated powers that traditionally belong to the legislative and judicial branches. Chevron Deference, established by the Supreme Court's ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), instructs courts to defer to an agency's interpretation of ambiguous statutes within its purview, provided the interpretation is reasonable. 1 While initially intended to expedite the implementation of complex regulations, Chevron Deference has effectively allowed agencies to assume Congress's lawmaking role.

This deference undermines legislative accountability, as lawmakers can vaguely draft laws and leave detailed rules to be interpreted by unelected officials. Justice Neil Gorsuch points out that such deference leads to a troubling abdication of judicial responsibilities. 2 The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo , presents an opportunity to reassess and possibly overturn this doctrine, reasserting the judiciary's role in maintaining constitutional balance.

Another issue threatening the separation of powers is the rise of in-house tribunals. These quasi-judicial bodies within administrative agencies adjudicate disputes according to agency-specific rules, often bypassing the traditional court system. These tribunals combine prosecutorial and judicial functions in one body, violating the principle of impartiality that upholds the judiciary. Without the established safeguards of procedure and evidence that govern regular courts, these tribunals can become tools of executive overreach.

The absence of a jury in these in-house tribunals further exacerbates the problem. Juries serve as a fundamental check on judicial and prosecutorial power, ensuring that the community has a role in the administration of justice. The removal of this crucial check shifts the balance of power decidedly to the executive, subverting the intended equilibrium among the branches of government.

The Executive's tendency to address major questions of economic and political significance without clear congressional authorization is increasingly prevalent. The Major Questions Doctrine, recently revitalized by the Supreme Court, maintains that issues of substantial importance must be clearly sanctioned by Congress. The Court's decision in Biden v. Nebraska nullified the Department of Education's extensive forgiveness of student loans under a tenuous interpretation of the HEROES Act, 3 underscoring that such significant decisions require unequivocal legislative approval.

These threats to the separation of powers underscore the urgent need to reinforce our constitutional safeguards. Robust checks and balances are essential to prevent any single branch from accumulating excessive power. Vigilance and corrective measures are crucial to preserve the freedoms that the U.S. Constitution protects.

Constitutional Tools to Reinforce Checks and Balances

The Appointments Clause is a cornerstone provision in maintaining the delicate balance of power among the branches of government. It ensures that appointments to positions of significant authority within the federal government receive scrutiny and consent from multiple branches. 1 Article II, Section 2 of the U.S. Constitution specifies that the President nominates officials and the Senate confirms them, creating a dual-consent process that prevents the executive branch from unilaterally filling key positions. This system of checks promotes transparency and accountability, aligning with the republican principles of governance.

The Major Questions Doctrine plays a critical role in preserving the separation of powers by demanding that significant regulatory decisions, especially those of vast economic or political impact, be clearly authorized by Congress. This doctrine asserts that agencies cannot assume broad regulatory authority unless explicitly granted such power by the legislature. This is fundamental in preventing executive overreach, compelling agencies to stay within boundaries set by the legislative branch. In Biden v. Nebraska , the Supreme Court relied on this doctrine to prevent the Department of Education from enacting sweeping student loan forgiveness measures under ambiguous statutory authority, underscoring the necessity of clear legislative instructions for significant regulatory actions. 2

The Constitution's provision for judicial review serves as a vital tool in maintaining the balance of power. Through Marbury v. Madison , the judiciary has the authority to assess the constitutionality of legislative and executive actions, ensuring that no branch exceeds its granted powers. This judicial check provides a mechanism for the courts to invalidate laws and actions that transgress constitutional boundaries, preserving individual liberties and preventing tyrannical governance. 3

The Non-Delegation Doctrine stems from the principle that legislative powers granted by the Constitution cannot be transferred to another branch. This Doctrine ensures that Congress cannot delegate its lawmaking responsibilities wholesale to executive agencies, preventing the blurring of lines between the legislative and executive branches. Instances where the Supreme Court has invoked this doctrine, though rare, reflect its potential to curtail excessive delegations of legislative power and reinforce the separation of powers. 4

The War Powers Resolution of 1973 exemplifies a statutory attempt to reassert Congressional authority over military engagements. By requiring the President to notify Congress within 48 hours of deploying military forces and limiting the duration of such deployments without Congressional approval, the Resolution serves as a check on the executive's command as Commander-in-Chief, ensuring that significant military actions reflect collective national will through elected representatives. 5

The Impoundment Control Act of 1974 represents another legislative effort to enforce checks on executive power, specifically the President's control over federal funds. By restricting the President's ability to unilaterally withhold appropriated funds, the Act reinforces Congressional authority over the federal budget, ensuring the executive adheres to legislatively determined fiscal policies. 6

The Constitution's explicit provision for the impeachment and removal of federal officials provides a check against abuse of power. This process ensures that high-ranking officials, including the President, are held accountable for "high crimes and misdemeanors." The dual responsibility, with the House of Representatives holding the authority to impeach and the Senate conducting the trial, underscores the seriousness of this tool, ensuring it is exercised judiciously and with broad support. 7

Finally, the requirement for periodic elections serves as the ultimate check in a republican system of government. By mandating regular elections for the House, Senate, and Presidency, the Constitution ensures that those in power remain accountable to the electorate. This electoral mechanism operates as a continuous and dynamic means of checking power, enabling the populace to voice their approval or disapproval of governmental actions. 8

These constitutional tools collectively form a framework designed to maintain a balanced distribution of power among the branches of government. Each tool reflects the philosophical underpinnings of a system built to guard against tyranny, entrusting different powers to different branches and ensuring accountability through a web of checks and balances. This intricate design showcases the foresight of the Founding Fathers, whose commitment to liberty and republicanism continues to guide and protect the governance of the Republic.

Case Study: Iraq's Constitutional Crisis

Iraq presents a sobering case study on the dangers of a collapsing separation of powers, which contrasts with the framework designed by our Founding Fathers. Once envisioned to serve as a federal constitutional democracy, Iraq's current trajectory underscores the necessity of maintaining a rigorous system of checks and balances to safeguard liberty and prevent authoritarianism.

The backbone of any constitutional democracy is its judiciary, designed to act as a bulwark against overreaches by the other branches of government. In Iraq, however, the Federal Supreme Court (FSC) has deviated from this foundational role. Instead of serving as an impartial arbiter, it has morphed into a political instrument that frequently oversteps its boundaries, compromising the principles it was intended to uphold. 9

The FSC was established under Law No. 30 of 2005, intended as a temporary measure preceding the establishment of a permanent court through the Iraqi Constitution. However, the required permanent legislation never materialized, resulting in a court that operates on unstable legal grounds. 10

The 2021 amendment to the FSC's establishment, through Law No. 25 of 2021, aggravated the situation. Passed by a simple parliamentary majority, this amendment violated constitutional mandates requiring a two-thirds supermajority for such changes. This disregard for constitutional processes has weakened the court's authority and underscored its susceptibility to political manipulation. 11

The imbalance is visible in the FSC's recent rulings, which have extended beyond the legitimate scope of legal challenges to serve political ends. The court's decision to declare the Kurdistan Oil and Gas Law unconstitutional reflects a capitulation to political pressures rather than a commitment to legal principles. The court's composition, heavily influenced by dominant political factions, ensures that its rulings often favor the federal government at the expense of regional autonomy, creating a centralization of power. 12

The politicization is evident in the court's inconsistent application of legal principles. In some cases, the FSC has intervened prematurely, striking down legislative drafts before they become law. Conversely, it has allowed clearly unconstitutional statutes to remain unchallenged post-enactment due to political expediency. 13

The absence of a jury system in the court's adjudication process further undermines the judiciary's integrity. Juries serve as a critical check, reflecting community standards and providing a mechanism for public accountability within the judicial process. The FSC's operations, devoid of this check, increasingly resemble unilateral decrees rather than balanced judicial deliberations. 14

The consequences of this erosion are profound. The systemic imbalance has facilitated political factionalism, enabling dominant factions to manipulate legal processes to their advantage. This has included altering electoral outcomes and marginalizing elected officials who do not align with the prevailing political agenda. The resignation of Judge Abdulrahman Zebari, citing the court's overreach and political misuse, highlights the need for reform. 15

Iraq's experience provides a contemporary example of the chaos that ensues when the foundational checks and balances are disregarded. It serves as a cautionary tale, illustrating how the absence of a well-established and respected judicial authority can lead to a concentration of power, exacerbating political instability and undermining democratic governance.

The Founding Fathers of the United States, through the design of our Constitution, sought to prevent such a collapse. By investing in a balanced separation of powers fortified with effective checks and balances, they envisioned a resilient republic where no single branch could dominate the others. The importance of this design ensures the proper functioning of government and protects the liberties of the citizenry from the perils of concentrated authority.

The cautionary example of Iraq underscores the necessity of vigilance in maintaining the integrity of these principles. The United States must remain committed to upholding the checks and balances that are the hallmark of our constitutional republic. This dedication preserves our freedoms and reaffirms the wisdom of our Founding Fathers, whose vision continues to guide and protect our nation.

The preservation of our constitutional republic hinges on maintaining the balance of power envisioned by the Founding Fathers. The mechanisms of checks and balances are vital in preventing tyranny and ensuring that no single branch can dominate. Vigilance in upholding these principles is essential for safeguarding the freedoms that define our nation.

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The governmental concept of the separation of powers was incorporated into the U.S. Constitution to ensure that no single person or branch of the government could ever become too powerful. It is enforced through a series of checks and balances.

Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.

History of the Separation of Powers

Founding Fathers like James Madison knew all too well—from hard experience—the dangers of unchecked power in government. As Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Therefore, Madison and his fellow framers believed in creating a government administered both over humans and by humans: “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The concept of separation of powers, or “trias politics,” dates to 18th century France, when social and political philosopher Montesquieu published his famed "The Spirit of the Laws." Considered one of the greatest works in the history of political theory and jurisprudence, "The Spirit of the Laws" is believed to have inspired both the United States Constitution and France's Declaration of the Rights of the Man and of the Citizen.

The model of government conceived by Montesquieu had divided the political authority of the state into executive, legislative, and judicial powers. He asserted that ensuring that the three powers operate separately and independently was the key to liberty.

In American government, these three branches, along with their powers, are:

• The legislative branch , which enacts the nation’s laws
• The executive branch , which implements and enforces the laws enacted by the legislative branch
• The judicial branch , which interprets the laws in reference to the Constitution and applies its interpretations to legal controversies involving the laws

So well-accepted is the concept of the separation of powers that the constitutions of 40 U.S. states specify that their own governments be divided into similarly empowered legislative, executive, and judicial branches. 

Three Branches, Separate But Equal

In the provision of the three branches of governmental power into the Constitution, the framers built their vision of a stable federal government, assured by a system of separated powers with checks and balances.

As Madison wrote in No. 51 of the Federalist Papers , published in 1788, “The accumulation of all powers, legislative, executive, and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

In both theory and practice, the power of each branch of the American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote from both houses .

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

The following are the specific powers of each branch that demonstrate the way they check and balance the others:

Executive Branch Checks and Balances the Legislative Branch

• President has the power to veto laws passed by Congress.
• Can propose new laws to Congress
• Submits the Federal Budget to the House of Representatives
• Appoints federal officials, who carry out and enforce laws

Executive Branch Checks and Balances the Judicial Branch

• Nominates judges to the Supreme Court
• Nominates judges to the federal court system
• President has the power to pardon or grant amnesty to persons convicted of crimes.

Legislative Branch Checks and Balances the Executive Branch

• Congress can override presidential vetoes with a two-thirds vote from both chambers.
• Senate can reject proposed treaties with a two-thirds vote.
• Senate can reject presidential nominations of federal officials or judges.
• Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury).

Legislative Branch Checks and Balances the Judicial Branch

• Congress can create lower courts.
• Senate can reject nominees to the federal courts and Supreme Court.
• Congress can amend the Constitution to overturn decisions of the Supreme Court.
• Congress can impeach judges of the lower federal courts.

Judicial Branch Checks and Balances the Executive Branch

• Supreme Court can use the power of judicial review to rule laws unconstitutional.

Judicial Branch Checks and Balances the Legislative Branch

• Supreme Court can use the power of judicial review to rule presidential actions unconstitutional.
• Supreme Court can use the power of judicial review to rule treaties unconstitutional.

But Are the Branches Truly Equal?

Over the years, the executive branch has—often controversially—attempted to expand its authority over the legislative and judicial branches.

After the Civil War, the executive branch sought to expand the scope of the constitutional powers granted to the president as Commander in Chief of a standing army. Other more recent examples of largely unchecked executive branch powers include:

• The power to issue executive orders
• The power to declare local and national emergencies
• The power to grant and revoke security classifications
• The power grant presidential pardons for federal crimes
• The power to issue presidential bill signing statements
• The power to withhold information from Congress through executive privilege

Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. Though they are technically correct, it is how the Founding Fathers intended the government to operate.

Our system of the separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government. Specifically, it does so in that the legislative (lawmaking) branch, as the most powerful, is also the most restrained.

As James Madison put it in Federalist No. 48 , “The legislative derives superiority…[i]ts constitutional powers [are] more extensive, and less susceptible to precise limits…[it] is not possible to give each [branch] an equal [number of checks on the other branches].”

Today, the constitutions of forty U.S. states specify that the state government is divided into three branches: legislative, executive, and judicial. Illustrating this approach and its inherent separation of powers, the California constitution states, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

While separation of powers is key to the workings of the American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap, being too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

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• U.S. Constitution: Article I, Section 8
• Proposed Amendments to the U.S. Constitution
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• Federalism and the United States Constitution
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• Overview of the 27th Amendment

Federalist 51

Writing federalist 51.

“It may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Federalist 51 PDF

Federalist 51 Summary

In this Federalist Paper, James Madison explains and defends the  checks and balances  system in the  Constitution . Each  branch of government  is framed so that its power checks the power of the other two branches; additionally, each branch of government is dependent on the people, who are the source of legitimate authority.

Madison also discusses the way republican government can serve as a check on the power of factions, and the tyranny of the majority. “[I]n the federal republic of the United States… all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” All of the Constitution’s checks and balances, Madison concludes, serve to preserve liberty by ensuring justice. Madison explained, “Justice is the end of government. It is the end of civil society.”

Madison’s political theory as expressed in this  Federalist Paper  demonstrated the influence of Montesquieu’s The Spirit of the Laws on the Founders.

Federalist 51 | Primary Source Essentials

Federalist 51 Full Text

To the people of the state of new york:.

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

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