Built to Argue: Checks and Balances

If Men Were Angels

The most famous explanation of the design is in Federalist No. 51. It is worth reading slowly.

Madison did not ask leaders to be good. He assumed they would want more power, and he designed around it. His solution fits in five words.

Give each branch the means and the motive to resist the others, and their competition becomes a protection for everyone else.

The Tools of Restraint

The Constitution spells out the checks in plain terms. A few of the most important:

1. The veto. A bill passed by Congress goes to the President, who can sign it or send it back.
2. The override. Congress can pass the bill anyway with a two-thirds vote in each house.
3. Advice and consent. The President makes treaties and nominates judges and senior officers, but treaties need two-thirds of the Senate, and appointments need its approval.
4. The power of the purse. Only Congress can raise taxes and appropriate money. An executive without funding cannot act.
5. Impeachment. The House can impeach the President, judges and other civil officers; the Senate tries the case, and conviction takes two-thirds.
6. Judicial independence. Judges keep their seats during good behavior, so a President or Congress cannot remove them for an unpopular ruling.

None of these tools gives any branch the final word in every case. Each one creates a point where another branch can say no.

The Least Dangerous Branch

The courts are the quietest branch, and Hamilton argued that was by design. They command no army and control no money.

In the same essay, Hamilton argued that when a law conflicts with the Constitution, judges must follow the Constitution, because it is the higher law the people themselves enacted. In 1803, in Marbury v. Madison, Chief Justice John Marshall made that principle part of American law, writing that it is emphatically the province and duty of the judicial department to say what the law is. That power, judicial review, became the courts’ check on the other two branches.

Friction as Protection

Checks and balances make government argue with itself, constantly and in public. That can be frustrating to watch. It is also the reason no single official can rewrite the rules on a whim.

For anyone dealing with the law, the design has a quiet benefit. When one part of government overreaches, there is almost always another part with the power, and the incentive, to push back. The founders did not build a machine that runs on trust. They built one that runs on friction.