Checks and Balances – Do We Really Want Them Anymore?

One thing I intend to do as I continue writing in this space is to let my ideas build on each other, expanding on points made in previous posts in order to work towards larger ideas without making any individual entry too lengthy. That’s why I advise any current or future readers to tackle my entries in order from the beginning, and that’s especially true this time, since this post is going to be based on some ideas I touched upon on Thursday. In particular, I want to expand on the idea that we have partisan theories of justice, and that our conception of justice supersedes our faith in laws or institutions.

One of these institutional norms is the idea that the three branches of the federal government should check and balance each other. We all remember James Madison’s words on the subject: “Ambition must be made to counteract ambition…[Y]ou must first enable the government to control the governed; in the next oblige it to control itself.” This wasn’t an idea that Madison and his contemporaries dreamed up themselves, of course; they were building on previous Enlightenment thinkers, Montesquieu in particular. Despite the importance of hedging against government becoming too tyrannical, I wonder if separation of powers is doing the work it’s supposed to anymore. And I don’t think I’m the only one who’s skeptical about this: as much as we’re required to venerate the Founders, and as much as every civics class in America will sing the praises of this arrangement by rote, I think we’ve moved away from the Madison-Montesquieu conception of well-designed government. And I see a few reasons why this might be the case. First, to the extent we still have checks and balances, they’re not an expression of the same dynamics that Madison envisioned. Second, our expectations of government are different from those of the Founders, and our government hasn’t changed enough accordingly. And lastly, to return to my previous entry, we just don’t have the same loyalty to procedure and institution that the Founders did.

Now then, the first issue becomes apparent when we look at what the Constitution provides for when it enumerates the powers of different branches of government, and compare to how things work nowadays. It’s primarily the President and Congress we should focus on here, because the Supreme Court has always been a bit more slippery and complicated. The other two branches, we all understand the dynamic: the President can veto acts of Congress, Congress can investigate or impeach the President, etc. In general, the two branches are supposed to have competing interests that keep the other from becoming too powerful, and in things like the War Powers Resolution, where Congress pretty clearly tried to circumscribe the President’s ability to get us into wars without Congress’ say-so, you can see that conflict even now. Thing is, though, that those kinds of clashes over territory are outliers now. As we all know, the real locus of political struggle now aren’t institutional, but partisan. So when President Obama faced a government shutdown by Congress, it wasn’t Congress vs. the President, it was Republicans vs. a Democrat. Now, some would say that’s fine, Federalist 51 talks about balancing factions, too, so long as somebody balances somebody, we’re good. But what if they don’t? What if, like right now, we have unified party control over the federal government? Then, we’re more likely to hear Senators complaining that it’s a waste of time “having Republicans investigating Republicans.” How is the general public supposed to believe in checks and balances when our elected officials themselves don’t?

The second issue is that, well, we don’t believe in checks and balances anymore. We may say we do when asked, but seeing it at work appalls us. Where your fair share of pundits (or Supreme Court Justices) can look at modern Washington gridlock and call it “just what the Framers intended”, the general public sees it as yet another sign of government dysfunction. And it makes sense when you consider that our expectations for what government should do for us have increased exponentially since the Constitution was laid down. Back in the 1790’s, we had no standing army; now, we have the world’s strongest military, global security commitments, and we’re held accountable every genocide or atrocity that happens on our watch. Back then, workplace safety and child labor laws were a distant dream of the future; now, we have a significant regulatory regime to enforce, as well as a substantial safety net for society’s most vulnerable. And for all of these responsibilities, government has to levy and enforce taxes. With so much more on the line, can we really afford to have Washington paralyzed by petty conflict between Congress and the President?

Lastly, we return to my final point in my previous post. No matter how much our faith in government is shaken, we all still have a conception of justice that we’d like to see the country embrace, and we join political parties that match our understanding of just government. That’s why Rand Paul refuses to investigate the Trump Administration too closely – he figures that so long as his and Trump’s understanding of justice are compatible, he’d be hurting his own cause by inconveniencing Trump (or he could be a craven coward afraid of Trump’s supporters, but that’s for you guys to decide if that’s true). This, more than anything, is why I think our Constitutional design is becoming obsolete; all things equal, institutions will generally try to check and balance each other, but partisanship upsets that balance by tying members of different institutions together behind a common ideology and theory of justice. And so long as our only defense against being tyrannized can be so easily infiltrated by ideologues, well, things fall apart; the centre cannot hold.

So, whatever else is decided, I do think we need to accept that the system of checks and balances our Founders gave us is inadequate for the task of dealing with ideologically sorted political parties. It hasn’t seemed that way for most of American history (most), but it’s important to remember that the parties didn’t used to be as homogeneous and ideologically opposed to each other as they are now. Ralph Nader whined about Tweedle-Dee and Tweedle-Dum, but back in the 1890’s, the Democrats and Republicans were both full of right-wing business fanatics, and twenty years later, they were both embracing the reforms of progressives, with 1912 giving us three progressive candidates at once in Wilson, Taft, and Roosevelt. We’re in danger now because the parties aren’t just factions; they’re causes and they’re cultures. Clearly, any effective checks and balances system will have to take that into account, should we ever get out of gridlock long enough to design something. That still leaves the question of whether checks and balances are still desirable in a world where we expect so much more from our government, and gridlock can cost lives. I have many thoughts on this, but in general I think conflict within the publicly elected branches of government isn’t the most important safeguard we could have against government overreach. But I’ll get to that some other time, when I talk about government transparency and the deep state.

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