for individual rights is the chief element of justice, all individuals must be given a voice. Self-interest makes us vigilant custodians of our own rights. Empathy and a sense of justice as well as self-interest (violations visited on others may be visited on us next) motivate us to protect the rights of others.11 The virtues of empathy and justice receive encouragement when the people can express their views not only through voting but also through voluntary associations and the press.12 In a thriving and inclusive civil society, new perspectives demand attention; errors are challenged; and those who want to view themselves and be viewed by others as good, fair, and decent must work harder to prove the case. Not least, popular government models the equality and universal respect that are inseparable from the idea of individual rights.
Madisonian Checks and Balances
Though dependence on the people is the primary control on government, “experience has taught mankind the necessity of auxiliary precautions” (Fed.51, p. 320). Most obviously, a majority may perceive a shared interest in oppressing a minority. In Federalist 10, Madison devises a sociological remedy and in Federalist 51 an institutional one. First, construct a polity in which no faction is likely to embrace a majority of the people. Second, divide and disperse power so that public officials can monitor and check each other’s behavior. The latter solution (on which I shall focus for the time being) is the principle of checks and balances. As I stated above, checks and balances should be understood as the “concurrent responsibility” of each actor to ensure that all actors exercise their power responsibly.
Concurrent responsibility is woven into the design of the U.S. Constitution. Members of Congress “and all executive and judicial Officers” take an oath to support the Constitution (U.S. Const., art. VI). If an unconstitutional bill is introduced in the Congress, legislators have a duty to reject it. If passed in one house, legislators in the other must block it. If they do not, the president has a duty to veto it, and if he or she fails to do so, or Congress overrides his or her veto, the federal courts have a duty to declare it unconstitutional.13 We can tell similar stories about the concurrent responsibility of the three branches to block unconstitutional acts by the executive and judiciary.
If Congress does its duty, the matter will not come before the president or the courts, but their independent power to block unconstitutional laws in case of congressional malfeasance reminds Congress of its constitutional obligations. Checks and balances thus perform an educative and reforming function. They serve not merely as an insurance mechanism, but as a means of habituating actors into virtuous behavior and thus (in good Aristotelian fashion) making them virtuous. They foster dialogue, thus creating possibilities for mutual learning and assistance as well as mutual supervision. In a constitution of divided powers and mutual checks, John Adams wrote, “a general emulation takes place.”14
We must stay clear of two persistent confusions, one regarding institutional design and the other regarding the motivation of the parties. The first is an identification of checks and balances with a strict separation of powers scheme in which functionally defined branches enjoy undisturbed authority within their respective spheres. An example of this view is the theory of the unitary executive, supported by a selective (and mistaken) reading of Alexander Hamilton’s Federalist essays, which in its most extreme version holds that the president has sole decision-making power on executive matters.15
The question is how we should understand the concepts of separation of powers and checks and balances. I do not intend to pit these two concepts against each other, since the meaning of both is what needs to be determined. Theorists often define one in terms of the other, and this is to be expected, because on the most plausible accounts they are functionally related. The question is which model ought to underlie both concepts. For our purposes, I shall distinguish between a “strict separation model”16 and a “mutual interference model,” and argue for the latter over the former.
Not only is the strict separation model contradicted by numerous provisions in the U.S. Constitution that institutionalize interbranch monitoring and control, but Madison clearly rejects it in his theoretical writings, and for sound reasons. He ties his view to that of Montesquieu, who (Madison tells us) understood the separation of powers as prohibiting only those arrangements in which “the whole power of one department is exercised by the same hands which possess the whole power of another department.” Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other” (Fed. 47, p. 304, emphasis in original). What is required is a modified rather than strict separation of powers.
Strict separation is impossible in practice: “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained” (Fed. 48, p. 308). An unmodified separation of powers leads to its own collapse. But the purpose of mutual controls is not merely to preserve a partial separation between the branches. As the discussion in Federalist 48 of Pennsylvania’s recent troubles makes clear, their purpose is to prevent constitutional violations in general, including violations of individual rights.
More worrying to Madison than the blurring of functional boundaries is the concentration of power itself. The “encroaching nature” of power (Fed. 48, p. 309) means that no department should acquire disproportionate strength. The early history of the American states had convinced Madison that, in republics, “the legislative authority necessarily predominates” and should therefore be divided in two (Fed. 51, p. 320). Soon after the federal union was created, he learned to fear the power of the executive branch, and adjusted his constitutional strategy accordingly.17 His interest in devising cross-departmental checks, evident at the Philadelphia Convention, persisted after the national constitution was drafted. In 1788 he recommended that Virginia adopt a “Council of Revision” drawn from members of the executive and judiciary branches with the power to veto “precipitate,” “unjust,” or “unconstitutional” laws passed by the state legislature.18
Separation of powers is not an end in itself. The reason not to combine legislative and executive power, Locke and Montesquieu argued, is that officials could otherwise enact oppressive legislation, serene in the knowledge that it would not be applied to themselves.19 Virtuous government involves distinct tasks: enactment of good laws and faithful interpretation and enforcement of the law. While some division of labor is necessary, so that each task is carefully distinguished and thus conscientiously carried out, the overall enterprise is cooperative in nature, and the separate branches can help each other fulfill their duty. An outsider’s perspective may more easily identify errors and abuses, while the consciousness of external monitoring encourages scrupulous performance of each task. Note that some interbranch independence is necessary for these checks to remain in place. Madisonian checks and balances entail mutual interference between the branches as a necessary precondition for virtuous government.
The second confusion to be avoided is an overly “adversarialist” reading of Madison’s theory of checks and balances. I have in mind the attribution to Madison of the view that, given the right institutional setting, virtuous motivation is not needed to steer political actors to just and wise policies. In the following paragraphs, I first comment on adversarialism and remind readers that it is not Madison’s view, and then argue that implicit in his actual view is a call on citizens and officials to intensify rather than relax their sense of individual moral responsibility.
Adversarialism is the belief that, in certain contexts, the vigorous pursuit of one’s self-interest leads by an “invisible hand” to the common good. While some applications of the theory are true, many are not. Too often, it becomes a license to engage in predatory and exploitive behavior with a clear conscience. Thus encouraged, corporate lobbyists deceive public opinion and obtain legislative favors, politicians mislead voters and rouse or pander to unreasonable passions, citizens demand pork
