Finding the Cracks of Modernity in the System of Checks and Balances

I. Introduction

The United States Constitution is renowned for being the first modern democratic

supreme law and also for being the most durable Constitution still in use in a states Government.

This explains why the work of the Founding Fathers has a sort of a sacred aura when it comes

to the credibility it has amongst the citizens that obey it and in the same note we can furthermore

explain the hardship in amending which is somehow understandable, in the sense that a

Constitution is meant to be hard to alter, in order to prevent tyrannical regimes and even

wanting to change, in various ways, this governing set of principles.

Written with the sole purpose to form more perfect Union, establish Justice, insure

domestic Tranquility, provide for the common defence, promote the general Welfare, and secure

the Blessings of Liberty to ourselves and our Posterity (U.S. Const. Preamble), the U.S.

supreme law does not mention anywhere in its text the words separation of power or checks

and balances. However, these principles represent the basis of the American political system,

defining in a way the idea of a federal, constitutional representative democracy that is the United

States.

Keeping in mind that the US Constitution was created more than two hundred years ago,

in a very particular historical background, I believe that not all the instruments it provides for the

three branches of power to control and check one another are still up-to-date, but on the contrary,

many of them have changed and developed unconstitutionally or not into unwritten,

inherent powers that have the potential of destabilizing the current fragile balance of the

countrys Government.
 The following essay will focus on understanding in what way the system of checks and

balances is still a defining attribute of the methods and procedures used in governing

contemporary America, how it has been modified throughout the growth of this country, which

are the reasons of those new developments and how these changes can affect the outcome of

ruling and lawmaking in the United States.

I. The initial division of power as apportioned in the Constitution. The reasoning behind

it and its efficiency in the present political system of the United States

The Constitution of the United States was born in 1787 after only eleven years had

passed since the the country gained its independence from Great Britain. This particular

historical fact as well as the historical background as a whole is very important in

understanding why the Framers insisted upon the separation of power and especially how did

they imagine a more perfect Union (U.S. Const. Preamble) by installing checks and balances.

As already stated, the supreme law does not offer explicit information on this particular

matter, so we find ourselves turning our attention to the text of Federalist No. 51. From the

beginning we are met with the answer for maintaining in practice the necessary partition of

power among the several departments (Hamilton or Madison, 2001, p. 231) which would be

according to the author of Federalist No. 51 the means of keeping each other in their

proper place (ibid., p. 231), i.e. the system of checks and balances.
While the separation and independence of each branch of power is insisted upon in order

to preserve liberty, Federalist No. 51 claims the need of both external and internal controls over

the government, as men are yet to become angels (Hamilton or Madison, 2001, p. 232). In this

case (i.e. of separation of power), the biggest problem for the Founding Fathers that is still a
rising issue even nowadays was to equally divide power, challenge that turned out to be

impossible to solve. As seen in the Constitution, the Legislative branch is the most powerful one

it also has the most checks on the other two branches and its dominance comes from the fact

that the Framers were afraid of too strong an Executive that could resemble the dreaded

monarchical system. However, in order to counterbalance all the legislative strength, a solution

was found in proposing a bicameral Congress. This implies that the Legislative has a self-

checking status, which was unique at the time the Constitution appeared among the three

branches1.
The fear of a strong executive having its roots in the upheaval against the British

Crown can be easily observed in the structure of the Constitution. Having its first Article

reserved to the Legislative, the power and checks over the President are clearly stated in order to

keep them closed to interpretation. Therefore, the House of Representatives shall have the sole

Power of Impeachment (US Const. Art. I, Sec. 2), the Senate shall have the sole Power to try

all Impeachments (US Const. Art. I, Sec. 3), the President shall from time to time give to the

Congress Information of the State of the Union (US Const. Art. II, Sec. 3), Congress may

override the Presidential veto, as it is explained in the US Constitution, on Article I, Section 7

and many other checks over the executive have also been stated in Article I, Section 8, such as

power to declare War, provide and maintain a Navy or provide for organizing, arming, and

disciplining the Militia, even though The President shall be Commander in Chief of the Army

1 The self-check of the executive branch appeared only after the ratification of the XXVTH
Amendment in 1967 and it consists in the possibility of the Vice President or the members of the
executive departments to transmit a declaration to Congress in which they can argue that the
President is unable to discharge the powers and duties of his office (US Const. Amend. XXV,
Sec. 4).
and Navy of the United States, and of the Militia (US Const. Art. II, Sec. 2) But what is there

left to command?! And the list of checks on the Presidency is yet to be concluded.
Fortunately, present day Executive does not look as weak as it had been portrayed

initially in the Constitution, for it has found ways of using its status in order to provide itself with

inherent powers. And while Presidency powers enhance, it comes naturally for the Legislative to

lose some.
Even at a first glance, the initial system of checks and balances, as constructed by the

Framers, seems to lack the elasticity needed in the continual change in present society.

Economic, social, cultural and technological developments have been putting pressure on the

political system, in the sense of keeping up with modernity. For example, pressing issues, made

public fast and easily by media coverage cannot wait for Congress (dis)approval, and therefore,

the Presidency finds executive orders a handy and effective response to relieve the public

pressure with a resolution. And this is only one example of going around the Constitution, but in

my opinion, these practices come naturally, as a reaction to an inexhaustive, somewhat obsolete

supreme law.

II. The Executive: Then and Now. Has Inefficiency of the Initial System of Checks and

Balances Led to Abuse of Power?

The Framers, however against a single executive represented by only one person, also

believed the new government needed energy in the executive. They were willing to increase the

risk of tyranny in return for some efficiency (Magleby & Light, 2009, p. 271). Other than this,

they were still very cautious in giving the Presidency too much power, but rather just enough in

order to keep Congress in check.

A striking issue that has political implications even nowadays was the one of

dividing the power over the Army and Navy. The Framers decided to give Congress the power

to declare War (U.S. Const. Art. I, Sec. 8) even though the President was still the Commander
in Chief. The problem with this decision is that however justified it was at the beginning it

does not identify itself with the current situation in the United States. There is no longer use for a

fear of a monarchical tyranny and even if there were the risk of a totalitarian regime, the

impeachment power or trial of impeachment shared by both legislative Houses should be enough

in checking the Presidency. Furthermore, contemporary affairs cannot wait for a congressional

decision, as they could back in the day, because best decisions need to be taken as fast as

possible.
These reasons can simply explain why lately there seemed to be an abuse of power on the

part of the executive regarding the recent wars America has gotten involved in.
Although Congress has the sole authority to declare war, presidents have

used their power as commander in chief to order U.S. troops into battle without

formal declarations dozens of times over the past century, including the recent

wars in Afghanistan and Iraq. Presidents have often interpreted the war power

even more broadly, as the Bush administration did in authorizing the domestic

eavesdropping program. (Magleby & Light, 2009, p. 274)

According to Magleby & Light, presidents of the United States have ordered troops into

battle in seven different states, all happening over the last half-century (Magleby & Light,

2009, p. 277) and while the executive finds it fit for its own authority, Congress did not agree

and in 1973, Congress enacted the War Powers Resolution (ibid., p. 274). But even the

Supreme Court has proscribed legislative attempts to extend congressional power into what

could be called the core functions of the executive branch (Garvey, 2012, p. 18) and however

resolved this foreign affairs problem may look, it is quite the opposite, as the executive can still

borrow the legislative power of declaring war.

In this particular case excluding extreme and subjective reasons of the Presidency that

can be resolved by a possible impeachment the power to wage war should stand into the
executive hands, as Congress may become an impediment in the efficiency needed on some

urgent matters. As current society depends on a very efficient and responsive government, delays

such as ruling over war implication or not can become a dangerous obstacle in providing the

security needed. Therefore, the current tendency of the executive to gain more authority seems to

be a natural response to the contemporary issues that appear in a modern society society that

puts its hopes and expectations in the executive as well, adding more pressure onto the

Presidency to start acting and resolving issues as fast as possible showing that the initial

system of checks and balances needs to be somewhat revised.

But the presidential increasing power does not stop here, also involving the highly

disputed right to signing statements or to give executive orders nowhere to be found in the

Constitution or, overall, the presidential right to lawmaking. According to Abner Greene, we

must relax our attachment to the framers principle of divided power as the increasing

presidential policy-making power has been accepted by the U.S. population (Greene, 1994, p.

134-135). This particular argument weighs more than any other, because if the people of the

United States authorize the increasing power of the executive, then the social reality should be

strong enough to change the initial laws, especially if they do not correspond to the

contemporary needs.

III.The Judicial: Then and Now. Is its Initial Agenda Enough to the Contemporary U.S.

Society?

While the Legislative was decided to be the dominating branch, the Framers have

recognized in the Judicial the least dangerous and, therefore, less powerful department, as it is

stated in Federalist No. 78: It proves incontestably, that the judiciary is beyond comparison the

weakest of the three departments of power. (Hamilton, 2001, p. 353)

 According to Carrington, the Founding Fathers had a different idea of how a judge should

attend his duties, as the judges who were known to the Founders were employed merely to

decide contested cases (Carrington, p. 4) and as long as they kept on simply applying the law,

without trying to make it, they were to remain the least powerful of the three branches.

The very brief constitutional Article dedicated to the Judicial, is not only open to

interpretation, but is also states two important rights of this branch that were meant to balance

the initial lack of power and to offer a stronger independence: that is, judges shall hold their

Offices during good Behavior and shall at stated Times, receive for their Services, a

Compensation, which shall not be diminished (US Const. Art. III, Sec. 1). But the things started

to change when John Marshall obtained the judicial review, that is the power to interpret the

Constitution (Magleby & Light, 2009, p. 326) and after him followed some other important

measures that increased the power of the judiciary branch.

In time, the Court has gained more rights especially through Judiciary Acts in the 20 th

century President Taft having a strong role in starting the enrichment of the Judiciarys

agenda , but these measures triggered the counterbalancing reaction: for example, Congress

found a way to purchase an end to life tenure for district judges and circuit judges

(Carrington, p.15).

The Judiciary Act of 1922 is important in the sense of permitting the creation of the

Judicial Conference of the United States that will, in time, receive additional roles and was

accorded increasing deference by Congress, with the result that the federal judiciary became

substantially self-governing (Carrington, p.12). According to Carrington, as consequence, the

Supreme Court got a role into law-making through the Rules Enabling Act, which was an
exceptional delegation by Congress of explicitly legislative power to judges, power they had not

previously exercised (ibid. p.12).

Another important Judiciary Act that followed in 1925 has given Court the Certiorari

Power. This is an extremely relevant step that will give the judicial branch the power of declining

cases.

It authorized the Supreme Court to refuse to hear many of the cases

brought to it, leaving unreviewed the merits of many cases decided by the

federal courts of appeals or by highest state courts. By stages, this discretion

was extended to all cases. And so with trivial exceptions, the Court now decides

only those cases it chooses to decide [...] no matter how critical other issues

might be to the disposition of a case at hand. (Carrington, p.17)

From this moment, without explaining itself, the Supreme Court has been handling only

the cases that seemed to be worthy of their attention, but furthermore, through the last years,

Court has also been getting involved in many matters relevant for society, but not so relevant for

Courts duties.
According to Carrington, Court started manipulating public opinion by turning its

attention to different matters. Court commenced to try to tell people not only how to govern

themselves but what to believe about grave moral issues of religious import to many citizens

(Carrington, p. 31). He further shows how the Judicials authority can manipulate the masses into

starting movements against the law for abortion, for example, or by looking into the prohibition

of homosexual acts, Court did serve further to excite the hostility of religious fundamentalists

(ibid., p. 33).
 These few examples are still enough to understand that the Judiciary branch does not look

the same it did back in the Framers time. The need of stronger checks upon it is more than

obvious, even though some of the changes have had a positive result in the efficiency of the

whole Government.

IV. Conclusion
Separation of powers has proven to be, not only in the United States, but also in other

democracies, an effective way of ruling and the system of checks and balances has been an

extraordinary measure of keeping the Government focused on its duties. The three branches need

to constantly supervise one another in order to have a properly functional mechanism that battles

against corruption and totalitarianism.

However, as society changes, its needs change as well and I believe that there might be

some current flaws in the system of checks and balances, in the sense of being out dated on some

matters. Therefore, some checks or powers need to be regulated and clarified, so that there will

be no room for interpretation that may result in abuse of power , but on the other hand, too

much independence of each branch can lead to inefficiency and bad communication.
One solution would be to update the problematic checks and balances that currently affect

the relationship between the three departments and also to obtain a more flexible relation

between them, which can be achieved by allowing, for example, the executive and judicial to

have a saying in the legislative matters that can directly affect them.
Tempering with the current state of the US Government might be a very delicate mission,

but I believe that, without altering the balance installed by the Framers, some measures can be

updated to the contemporary needs of the society.

However, there is still some room left to debate how would these new rules change the

current system and if there will be any damage, would it still be reparable?
V. Bibliography

1. Carrington, PD, Checks and Balances: Congress and the Federal Courts. Available at:

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?

article=5502&context=faculty_scholarship. [04 January 2017].

2. The Constitution of the United States, transcript text, Available at:

https://www.archives.gov/founding-docs/constitution-transcript. [04 January 2017].

3. Garvey, T 2012, Presidential Signing Statements: Constitutional and Institutional

Implications, Congressional Research Service, Available at:

https://fas.org/sgp/crs/natsec/RL33667.pdf. [03 January 2017].

4. Greene, AS 1994, Checks and Balances in an Era of Presidential Lawmaking, University

of Chicago Law Review: Vol. 61: Iss. 1, Article 3. Available at:

http://chicagounbound.uchicago.edu/uclrev/vol61/iss1/3. [02 January 2017].

5. Magleby, DB & Light, PC 2009, Government by the People, Pearson Education.

Available at: https://www.scribd.com/doc/38985053/Government-by-the-People-1. [05

January 2017].
6. Manis, J (ed) 2001, The Federalist Papers, Pennsylvania State University. Available at:

https://www.scribd.com/document/8325691/The-Federalist-Papers. [04 January 2017].