3-Minute Civics: What does ‘checks and balances’ really mean?

For the Monitor
Published: 8/18/2019 8:00:12 AM

Imagine you’ve just won a revolution against a tyrannical king. You look around the dimly lit room, and it’s up to you and those around you to come up with a new form of government. Where to begin?

Well, what’s the one thing you’re most afraid of? Most likely, you fear the rise of another tyrannical king.

When the Founders were drawing up the government of the new United States in the late 18th century, they were pretty clear about what they didn’t want: concentration of power in any one seat of office, lest a tyrant like the king they’d just fought and won a revolution to escape should become the head of state. But no one can guarantee a future composed of honest men (and women, though of course the Founders weren’t thinking about women). So they designed a form of government that would, they thought, keep tyranny at bay even if a tyrant came to power.

The Founders wrote a Constitution that established three branches of a government: legislative, executive and judicial. The Founders divided the responsibilities of governing among these three branches: roughly, the legislative branch makes the laws, the executive branch executes – or carries out – the laws and the judicial branch interprets the laws. With the powers of government divided in this manner, dangerous corruption or undue ambition in one branch could be “checked” by the other two before any rot in one branch spread throughout the whole government. (Note that there is also another important set of checks and balances between the states and the federal government, but I’ve got limited column space here.)

Sounds easy, right? If only!

Over the past 243 years, the three branches have fought over their responsibilities countless times and in countless incarnations – especially the legislative and executive branches. Many of these disputes have been resolved and become law through the principle of judicial precedent. (This is known as “common law.”) And the process is ongoing.

Let’s take a look at a few examples of how this is relevant today.

In the first example, the Constitution clearly grants the executive branch, in the form of the president, the power to appoint judges. But this is not an unfettered power, because the Constitution specifies that the Senate – one of the two bodies that make up the legislative branch – has the power of “advice and consent” on presidential appointments. The Senate exercises this power in the form of confirmation hearings and votes, and the purpose of its contribution to the process is to ensure that a president does not appoint persons who are unqualified or otherwise unworthy of the positions they seek. Once mostly routine, judicial nominations and confirmations, like other presidential appointments, have become increasingly and deeply contentious in recent decades.

In an earlier example, the United Steel Workers had threatened to strike during the Korean War. President Harry S. Truman, stating that he believed such a strike would be harmful to the federal contractors and the war effort, seized steel production facilities. The steel companies sued, and in the Youngstown Steel case in 1952, the Supreme Court ruled that Truman was overreaching – the president couldn’t seize private property in the absence of statutory authority granted by Congress.

Finally, in another Supreme Court decision, Citizens United v. the Federal Election Commission, the Supreme Court ruled that political spending is a form of protected free speech under the Constitution’s First Amendment, and that such spending by corporations, nonprofits and unions can’t be restricted. The opinion is quite controversial, and many opponents of the decision now advocate passing a constitutional amendment to override it. As spelled out in the Constitution, an amendment would require two-thirds of both houses of Congress to vote for it, and then three-quarters of the states would have to ratify it. Only then would the amendment overrule the Supreme Court decision and become law. (Or a constitutional convention could be held, but that’s a lot more difficult and complex.)

If that sounds like a lot of work, it is. Democracy is difficult. Not permitting anyone to hold enough power to become a tyrant means that the responsibility of governing has to be spread around; it means that a lot of people have to be engaged in the job of deciding how the country should be run. The checks and balances of our Constitution exist in recognition of the fact that we must trust in our democratic system and the officeholders it puts in place, but we must also provide redress for injustices and means to protect democratic principles when they are threatened.

As John Adams said – and I’ll paraphrase – the ultimate check on our democracy is we, the people, at election time.

What do you think of our constitutional system of checks and balances? Does it make sense? Is it working? How and why, or why not?

(Tracy Hahn-Burkett lives in Bow.)


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