wanted it to be powerful. Hamilton’s argument in Federalist No. 78 laid the groundwork for John Marshall’s decision in Marbury v. Madison granting the Court the power of judicial review. They also wanted the federal judiciary to be supreme, something they spelled out gently because it was still a sore spot with Anti-Federalists, but that was reinforced with subsequent rulings. But they also wanted the Court to be perceived as above politics, and one way to achieve that illusion was for the court to remain nonpartisan in its rulings. Rulings would undoubtedly have political impact but not show blatant support for the agenda of one party over another.
Separation of Powers and Checks and Balances
Separation of powers means that legislative, executive, and judicial powers are not exercised by the same person or group of people, lest they abuse the considerable amount of power they hold. We are indebted to the French Enlightenment philosopher the Baron de Montesquieu for explaining this notion. In his massive book The Spirit of the Laws, Montesquieu wrote that liberty could be threatened only if the same group that enacted tyrannical laws also executed them. He said, “There would be an end of everything, were the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”21 Putting all political power into one set of hands is like putting all our eggs in one basket. If the person or body of people entrusted with all the power becomes corrupt or dictatorial, the whole system will go bad. If, however, power is divided so that each branch is in separate hands, one may go bad while leaving the other two intact.
separation of powers the institutional arrangement that assigns judicial, executive, and legislative powers to different persons or groups, thereby limiting the powers of each
The principle of separation of powers gives each of the branches authority over its own domain. A complementary principle, checks and balances, allows each of the branches to police the others, checking any abuses and balancing the powers of government. The purpose of this additional authority is to ensure that no branch can exercise power tyrannically. In America’s case, the president can veto an act of Congress; Congress can override a veto; the Supreme Court can declare a law of Congress unconstitutional; Congress can, with the help of the states, amend the Constitution itself; and so on. Figure 2.1 illustrates these relationships.
checks and balances the principle that allows each branch of government to exercise some form of control over the others
The Rules
As we saw, the Constitution establishes separation of powers with articles setting up a different institution for each branch of government. Checks and balances are provided by clauses within these articles:
Article I sets up a bicameral legislature. Because both houses must agree on all legislation, they can check each other. Article I also describes the presidential veto, with which the president can check Congress, and the override provision, by which two-thirds of Congress can check the president. Congress can also check abuses of the executive or judicial branch with impeachment.
Article II empowers the president to execute the laws and to share some legislative function by “recommending laws.” The president has some checks on the judiciary through the power to appoint judges, but this appointment power is checked by the requirement that a majority of the Senate must confirm the president’s choices. The president can also check the judiciary by granting pardons. The president is commander-in-chief of the armed forces, but the ability to exercise this authority is checked by the Article I provision that only Congress can declare war.Figure 2.1 Separation of Powers and Checks and Balances
Article III creates the Supreme Court. The Court’s ruling in the case of Marbury v. Madison fills in some of the gaps in this vague article by establishing judicial review, a true check on the legislative and executive branches. Congress can countercheck judicial review by amending the Constitution (with the help of the states).
The Constitution wisely ensures that no branch of the government can act independently of the others, yet none is wholly dependent on the others, either. This results in a structure of separation of powers and checks and balances that is distinctively American.
The Norms
What the Constitution doesn’t say about checks and balances is that the branches have to make it work for it to work. Congress has to hold the president to account through oversight and by withholding consent to unqualified appointments. The president has to veto bills he thinks are wrongheaded or that the country cannot afford in some way. The Courts have to truly be independent—judges must be loyal not to the person who appointed them but to the country and the Constitution. The founders expected checks and balances to hold even if a single party held Congress and the White House; they would have chosen a parliamentary system if they wanted the Congress to rubberstamp executive action or the Courts to take partisan sides.
Figure 2.2 Amending the Constitution
Amendability
If a constitution is a rule book, then its capacity to be changed over time is critical to its remaining a viable political document. A rigid constitution runs the risk of ceasing to seem legitimate to citizens who have no prospect of changing the rules according to shifting political realities and visions of the public good. A constitution that is too easily revised, on the other hand, can be seen as no more than a political tool in the hands of the strongest interests in society. A final feature of the U.S. Constitution that deserves mention in this chapter is its amendability—the founders’ provision for a method of amendment, or change, that allows the Constitution to grow and adapt to new circumstances. In fact, they provided for two methods: the formal amendment process outlined in the Constitution, and an informal process that results from the vagueness of the document and the evolution of the role of the courts (see Figure 2.2).
amendability the provision for the Constitution to be changed, so as to adapt to new circumstances
In the 200-plus years of the U.S. Constitution’s existence, more than 10,000 constitutional amendments have been introduced, but the Constitution has been amended only twenty-seven times. By contrast, in the course of interpreting the Constitution, the Supreme Court has, for example, extended many of the Bill of Rights protections to state citizens via the Fourteenth Amendment, permitted the national government to regulate business, prohibited child labor, and extended equal protection of the laws to women (see the next section for more on the Bill of Rights). In some cases, amendments previously introduced to accomplish these goals (such as the Child Labor Amendment and the Equal Rights Amendment) were not ratified, and in other cases the Court has simply decided to interpret the Constitution in a new way. Judicial interpretation is at times quite controversial. Many scholars and politicians believe that the literal word of the founders should be adhered to, whereas others claim that the founders could not have anticipated all the opportunities and pitfalls of modern life and that the Constitution should be considered a flexible, or “living,” document. We return to this controversy when we look more closely at the courts in Chapter 9.
The Constitution is silent on the subject of judicial interpretation, but in part because it is silent, especially in Article III, the courts
