FEDERALISTS v ANTI-FEDERALISTS PART FOUR: Checks And Balances? Or Mere “Parchment Barriers?”

we-the-people

Unlike the Anti-Federalists, the Federalists felt relatively comfortable granting the new General Government the sweeping and general powers listed in the proposed Constitution, for they felt that they had provided adequate safeguards– checks and balances-– to protect against the seizure of the Government’s substantial powers by those who would exercise them tyrannically.

Preparing for the contingency that “enlightened statesmen will not always be at the helm” (Madison, Federalist #10), the Framers of the Constitution decided upon a DIVIDED Government. There are theoretically numerous ways of dividing a government into different components (the division could be based on different physical jurisdictions, for instance– or, on different bureaucratic domains– or, on the different political tools to be used by the Government). The Framers, following Montesquieu, opted to divide the proposed Government into three Branches, based upon FUNCTION:

1. the making of the laws (Legislative Branch)

2. the execution of the laws (Executive Branch)

3. the interpretation of the laws (Judicial Branch)

“If men were angels, no Government would be necessary,” Madison famously stated in Federalist #51. But since men are most definitely NOT angels, the Constitutional Framers decided that we need not only Government– but a Government internally containing its own defenses against misuse of power.

Madison noted in Federalist #48 that “it will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

The genius of the Framers was that, instead of designing a Government based upon the HOPE that only men of the highest caliber would occupy governmental positions for however long the United States endured, they took Man as they found him, warts and all, and designed a Government to accommodate both his strengths, and perhaps more importantly, weaknesses.

The Founders crafted a Divided Government in which each man’s ENVY, GREED , AMBITION, HUNGER FOR POWER, and THIRST FOR PRESTIGE would be turned from evil personal pursuits to benevolent actions benefiting the National community.

Hamilton, perhaps the Founder least generous in his view of human nature, stated in Federalist #72 that, when it comes to reining in power-holders, “the best security for the fidelity of mankind is to make their interests coincide with their duty.”

On the other hand, Federalist John Jay (who I found made some of the Federalists’ weakest arguments), offered a very optimistic and generous view of Human Nature (if not downright naive)…

In Federalist #64, Jay claimed that the President and Senators, “having no private interests distinct from that of the nation […] will be under no temptations to neglect the latter” …and that… “every consideration that can influence the human mind –such as honor, oaths, reputations, conscience, the love of country, and family attractions and attachments– afford security for their fidelity.” [He seems to have forgotten the “considerations” of wealth and power].

This is the same John Jay who, speaking of the possibility that the President and the Senate would misuse or abuse their power of treaty-making… “as to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two-thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained.”

Regardless of Jay’s optimistic comments, not many folks on either side of the Constitutional question felt comfortable giving individuals in Government too wide a range of power and too much discretion in its exercise.

James Wilson, in his speech of 6 October 1787 admitted that “it is the nature of Man to pursue his own interest in preference to the public good.”

And Madison conceded, in Federalist #41 that “a power to advance the public happiness involves a discretion which may be misapplied and abused.”

Madison was adamant that the checks and balances provided in the Constitution were no mere “parchment barriers” (Federalist #48), but would prove to be substantial and practical defenses.

CHECK #1: The first line of defense was to be the nature of Democracy, itself. Madison was convinced, according to his words in Federalist #44, that bad rulers, in most instances, could only get so far before being tossed out on their ear by the voters. In Federalist #51, he reiterated that “a dependence on the people is, no doubt, the primary control on the Government” …BUT… He added that “experience has taught mankind the necessity of auxiliary precautions.” Such auxiliary precautions would include Checks #2 through #4…

CHECK #2: Madison wrote in #44 that, even where the Democratic process proves an inadequate or imperfect defense against tyranny, there is always a second line of defense in a Federation: the jealousy of the States to guard their own domains of power. States, contended Madison, would be ever on their guard against the encroachment of the Federal upon the State political sphere.

CHECK #3: Madison also felt that the Constitution offered a third line of political defense: the Judiciary’s power to nullify laws and Executive actions.   Wise judges, never fear, will be watching over the flock.

CHECK #4: Madison held the fourth line of defense to be the fact that, even if the Legislature were to pass a Constitutionally obnoxious law, the Executive Branch would retain its own discretion as to how to execute said law.

For all these “Checks” to actually work in practice, each Branch (or what Madison sometimes called “Department”) must be made as independent of the others as possible. “The great security against a gradual concentration of the several powers in the same Department,” he wrote in Federalist #51, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”“Ambition must be made to counteract ambition.” By supplying each Branch with “opposite and rival interests,” ambition and the desire to maintain one’s power will make-up for “the defect of better motives.”

Patrick Henry, always happy to wield a verbal sledgehammer where a tack-mallet might do, was utterly dismissive of the supposed “checks and balances” of the Constitution. “There will be no checks, no real balances, in this Government,” he declared in his speech of 5 June 1788. “What can avail your specious imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?”

The Anti-Federalist writer using the pen-name of “Centinel” also thought the idea of checks and balances made for better theory than practice. “This hypothesis supposes a human wisdom competent to the task of instituting three co-equal orders in government,” he wrote in essay Number One, 5 October 1787. Furthermore, he objected, the idea requires us to believe that the views and interests of the officials of the different Branches “should be so distinct as to prevent a coalition of any two of them for the destruction of the third.”

Centinel also objected to the idea of Divided Government along other lines. “If you complicate the plan by various orders, the people will be perplexed and divided in their sentiments about the source of abuses or misconduct, some will impute it to the Senate, others to the House of Representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive.”

Hamilton, writing in Federalist #70, made a similar argument; multiple responsible parties confuse the issue of accountability…

“The circumstances which may have led to any national miscarriage of misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is chargeable.”

…and…

“It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity and under such plausible appearances, that the public opinion is left in suspense as to the real author.”

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