Checks and Balances

I

INTRODUCTION

Checks and Balances, the doctrine and practice of dispersing political power and creating mutual accountability among political entities such as the courts, the president or prime minister, the legislature, and the citizens. The diffusion of power and the mutual accountability are designed to prevent any single group or individual from dominating the political system. Political systems with checks and balances sometimes have a separation of powers—that is, an allocation of different political and legal functions to separate and independent branches of the government.

II

ORIGINS OF THE CONCEPT

The concept of checks and balances can be traced to ancient political philosophers, such as Aristotle and Plato. In their view, the best form of government included a mix of different types of power. An ideal government would include elements of monarchy (rule by hereditary right), aristocracy (rule by a few for the good of all), and democracy (rule by the people). In its earliest formulations, the concept of checks and balances thus emphasized dividing power according to segments of society. Such a mixed system, they thought, would be more likely to achieve the best balance between the pitfalls and strengths of each form of government.

Many centuries later, some countries in Western Europe began to institute elements of checks and balances. Parliamentary challenges to English royal authority in the 1640s, for example, led King Charles I to accept a system that combined monarchal power with aristocracy and limited democracy. This power struggle between the Long Parliament and Charles I led to temporary expansion of parliamentary authority in the late 17th century, which became permanent in the 18th century. It was in this period that the English legal scholar William Blackstone described the English system as achieving an ideal balance among democracy, aristocracy, and monarchy.

The 18th-century French political theorist Baron Montesquieu also observed the functioning of checks and balances in English politics. Montesquieu theorized a scheme of checks and balances that advocated the assignment of separate powers to monarchal, aristocratic, and democratic political institutions. In addition, Montesquieu argued in his study The Spirit of the Laws (1748) that the best way to provide a check against the abuse of power by monarchs was through intermediary bodies that the monarch could not abolish, such as the church, guilds, and professional associations. The dispersion of power to these institutions outside of government would make it more difficult for the government to abuse its authority. Montesquieu, along with many theorists before him, assumed that balance could succeed only in a society with a relatively small and homogeneous population.

American statesman James Madison reformulated the theory of checks and balances in the 18th century, decisively challenging the earlier views. Madison argued that the larger the society, and the more diverse the interests of its inhabitants, the more likely each faction was to block and thwart the interests of other factions seeking control. This would prevent the formation of a permanent majority that could oppress minority groups or interests. Madison’s understanding was central to the writing of the Constitution of the United States, which incorporated a separation of powers and many checks and balances.

The concepts of checks and balances and separation of powers have similar intellectual origins. Some scholars regard the ideas as basically identical, but others emphasize the ways in which the concepts differ. In determining whether the concepts differ, it is important to note that there are political systems that have checks and balances but very little separation of powers. This suggests that the two concepts should be regarded as different. The theory of separation of powers, moreover, calls for a division of government authority but says nothing about power elsewhere. In contrast, the theory of checks and balances regards power outside the government as an important limit on government abuses. So although the concepts are similar, the notions of separation of powers and checks and balances can be regarded as distinct.

III

CHECKS AND BALANCES IN THE U.S. GOVERNMENT

The system of checks and balances is a basic feature of the United States government. The mechanism of checks can be seen through five basic institutional features of the system.

The first check comes from the fact that different branches of the government have overlapping authority, so each branch can act as a limit on the other. For example, the president can veto an act of Congress. A two-thirds majority in Congress can then override the president’s veto. The president appoints major federal officials, but only if the Senate by majority vote agrees. The president administers the affairs of the federal government, but Congress controls the federal budget. Congress enacts laws, but the courts interpret their meaning and may even strike down a particular law if it violates the Constitution. However, Congress may propose amendments to the Constitution to overturn a court’s rulings; these amendments must then be ratified by the states. In addition, court decisions can be overruled by higher courts and, later, by judges who might choose to reconsider the issues. Furthermore, the president appoints the judges, subject to the Senate’s approval. However, federal judges have lifetime appointments, so the next president and Congress cannot simply remove them from office. But if the judges (or certain other officials, including the president) commit crimes, Congress may impeach them and then remove them from office.

A second check comes from the division of power within the legislative branch. Each house of Congress provides a check against the other, because both must agree on the exact wording in a bill in order to pass it into law. This check forces legislators to consider issues and constituencies that do not affect them directly.

Third, Congress can regulate many local and state activities, especially when there are conflicts between one state and another. But Congress has limited powers and is made up of representatives elected from the states, so the states in turn have a check on national affairs.

The fourth check is on the power of lawmakers themselves. They are accountable to the people through elections; their power is not based on a birthright or social status, as it is in monarchal or aristocratic political systems. In the United States system, if lawmakers take actions that are unpopular, they can be removed from office in the next election. Moreover, lawmakers are elected in different ways. A member of the House of Representatives is elected from a single district within a state, while a member of the Senate is elected by all the voters in a state. The president is elected by all the nation’s voters, and this national election requires a winning candidate to address diverse constituencies. The varied methods of electing political leaders bring assorted political perspectives and interests into the government, and these can be a check on each other.

The fifth check on the government emerges from the civil liberties protected by the Constitution, including freedom of speech, freedom of the press, and the freedoms of association and assembly. These rights ensure that if the government takes improper or unpopular actions, newspapers and other media can bring the actions to public attention. Citizens can speak out against the government and try to effect change. This check on government power is informal but spread throughout the population.

Not all parts of the United States government have checks and balances. The Federal Reserve System, for example, has few institutional limits on its authority to set monetary policy.

Where checks and balances are in place they are not always efficient. The power of different elements of the political system to block each other can lead to gridlock if no political interest has enough power to prevail over the others. In 1997 and early 1998, for example, the Senate refused to take action on many of President Bill Clinton’s appointments of new federal court judges. Although the Senate’s power to approve or reject federal court nominees is one of the key checks on presidential authority, the dispute between Clinton and the Senate meant that there were not enough federal judges to handle the court’s workload. But the system of checks and balance was not designed for efficiency or speed, but rather to prevent misrule and tyranny.

IV

CHECKS AND BALANCES IN OTHER COUNTRIES

In the 18th and 19th centuries many European countries replaced monarchal rule with democracy. This meant that the authority of the kings and queens was replaced by the authority of an elected executive, usually a prime minister. Legislatures and courts became central features of these democracies, and most created basic civil liberties. As a result, in many countries the system of checks and balances that was initially created to balance monarchy, aristocracy, and democracy was gradually transformed into a system to balance executive, legislative, judicial, and popular power.

By the late 20th century nearly all economically developed countries had incorporated elements of checks and balances into their political systems. Even in countries such as Britain—where there is relatively little separation of government powers—government institutions still have checks on each other. The British Parliament, for example, selects the country’s prime minister, but the prime minister can be removed through a majority vote by Parliament of no confidence. This means that even though the chief executive is a member of the legislature, he or she does not have unlimited power once in office.

Many countries impose limits on one of the strongest checks on government authority: freedom of speech. Even some otherwise democratic countries have legislatures that can effectively impose bans on books, films, or other materials that they deem obscene or treasonous. In addition, most parliamentary systems permit the legislature to act as a court of appeals for important cases, giving the lawmakers the power to both write and interpret the laws.

But many countries have stronger systems of checks and balances. South Africa, for example, has a special constitutional court to act as a check on the judiciary, executive, and the legislature. Countries sometimes create independent agencies to handle politically sensitive tasks free from outside interference. The South African government, for example, created the Truth and Reconciliation Commission in 1995 to investigate crimes committed during the apartheid era.

In any political system, a system of checks and balances functions effectively only if the public and the political leaders agree on the basic elements of the system. If this legitimacy is lacking, then formal checks and balances written into the laws may not have any effect at all. The constitution of the Union of Soviet Socialist Republics, for example, created an independent judiciary and guaranteed civil liberties for individuals, but these were undermined by the system’s lack of legitimacy. The Communist Party dominated the political system and manipulated the courts. The lack of an independent judiciary meant that Soviet citizens could not press for change without fear of arrest or other retribution. As a result, scarcely any limits were imposed on government authority by the courts or from public protests.