Separation of Powers – Checks and Balances

BLOG POSTINGS ON THE PRESIDENT and the PRESIDENCY

Whatever the advantages of blogs may be, one of the disadvantages is that it gives many people the opportunity to express opinions on subjects which they have not studied in sufficient detail and about which they are thus resultantly less competent to pass any informed judgment than if their voices had come from the standpoint of considered and well-researched reason. Blog postings on the Presidency abound – but of what value are they?

THE AMERICAN PRESIDENT and the PRESIDENCY

I am in the process of reading The American President by the Kunhardt clan, ISBN 1-57322-149-X (it was also televized). It is better to FIRST understand the Presidency (something not apparent in many blog postings about US Presidents) and THEN to voice one’s opinion on the subject. [Please note in Amazon that if you enter ISBN numbers with the dashes included you will get ZERO results – you have to write the ISBN together without hyphens as 157322149X in the search box].

In a chapter entitled “The Balance of Power”, the Kunhardts discuss the Presidents James Madison, James K. Polk (greatly underrated President whose expansion of US territory during his administration “made” America territorially what it is today), William Howard Taft, and, surprisingly, perhaps, under this heading, William Jefferson Clinton.

JAMES MADISON AND THE FEDERALIST PAPERS

In discussing the brilliant James Madison, the Kunhardts refer to the Federalist Papers, eighty-five essays which Madison coauthored with Alexander Hamilton and John Jay in the years 1787 and 1788 in order to convince New York State delegates to adopt the US Constitution.

In one of these papers, Federalist Paper Number 51, Madison writes as follows under the title “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”: [this is our selection of text and it is our emphasis in block type – you MAY have to concentrate a bit to understand the text, it is out of another era]:

FEDERALIST PAPER Number 51

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places….

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others….

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions….

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department [the President] and the weaker branch [Senate] of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? …

There are, moreover, two considerations particularly applicable to the federal system of America….

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [LawPundit note: Federal and State governments], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself….”

We will in future postings address some modern issues in light of Madison’s statements in the above Federalist Paper.

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