checks and balances essay introduction

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Checks and Balances

By: History.com Editors

Updated: July 27, 2023 | Original: November 17, 2017

The system of checks and balances in government was developed to ensure that no one branch of government would become too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches of the U.S. government—legislative, executive and judicial—and includes various limits and controls on the powers of each branch.

Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention , but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome , the Greek statesman and historian Polybius identified it as a “mixed” regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke  and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch , the executive branch and the judicial branch .

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison  wrote in the Federalist Papers , of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

• The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.
• Congress has the power of the purse, as it controls the money used to fund any executive actions.
• The president nominates federal officials, but the Senate confirms those nominations.
• Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.
• In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts
• By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the  House of Representatives  and the  Senate , or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).
• Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes—and congressional overrides of those vetoes—tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions. 

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for in the U.S. Constitution, but rather implied by Article II, which states that the president “shall take Care that the Laws be faithfully executed.” Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury. 

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR’s New Deal .

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt’s proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon , who called it an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military. 

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations “police action.” Presidents Kennedy , Johnson and Nixon each escalated the undeclared conflict during the Vietnam War .

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act’s components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal , the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

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Checks and Balances, The Oxford Guide to the United States Government . Baron de Montesquieu, Stanford Encyclopedia of Philosophy . FDR’s Losing Battle to Pack the Supreme Court, NPR.org . State of Emergency, New York Times , Pacific Standard , CNN . 

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The Constitution Unit

What are checks and balances?

Checks and balances are the mechanisms which distribute power throughout a political system – preventing any one institution or individual from exercising total control. This principle is core to all modern democracies.

The words ‘checks’ and ‘balances’ are typically used together but refer to subtly different (though overlapping) things. Checks are the mechanisms which allow political institutions to limit one another's power by blocking, delaying or simply criticising decisions. Balances, meanwhile, ensure that a wide variety of views and interests are represented in the democratic process.

There is no single definitive list of checks and balances, but there are some key institutions which operate at the UK level as checks and balances on the executive.

The first is parliament which provides the core check on the executive. The House of Commons has the unique power to grant or withdraw confidence in the government. Both it and the House of Lords play a crucial role in scrutinising new laws, and in overseeing the broader activities of the executive. Checks and balances also operate in parliament itself, between the two chambers.

The courts are a second key institution, which provide a check by applying the law as made by parliament. The relationship between courts, parliament, and the executive is designed to uphold the doctrine of parliamentary sovereignty. The courts therefore interpret, but cannot overturn, primary legislation. In areas where parliament has less opportunity for oversight of the executive (e.g. secondary legislation and prerogative powers), the courts play a more significant role as a check on the executive.

The third such check is provided by impartial officials. Those working in the civil service act as a balance; they are required to be politically impartial, and act as a keeper of institutional memory, drawing on lessons from the successes or mistakes of previous governments. Another check is provided by regulators.  Another check is provided by independent regulators, which foster good practice, and investigate and identify wrongdoing by those working in all parts of the system.  

The media and civil society provide the fourth key institutional check. The media scrutinises politicians and public officials, operating as a check not only on the executive but on the political system more widely. It also provides a balance by ensuring that a wide range of views are heard. Civil society also provides opportunities for broader groups within society to have input into the governing process, and acts as a check and balance by allowing for politicians’ actions and proposals to be scrutinised by expert groups outside government and parliament.

Checks and balances play a vital role in a modern democracy. They prevent power from being concentrated too much in one part of the governing system and help to avert the problems that can arise when decisions are taken without proper scrutiny or when high standards of behaviour are not enforced.

The executive has a particularly important role to play in safeguarding checks and balances by engaging with parliamentary scrutiny, behaving appropriately towards the courts and civil service and respecting regulators.

Related explainers: 

• What is a constitution? 
• What is the UK Constitution?
• What are constitutional conventions? 

Related research:

• Constitutional Principles and the Health of Democracy
• Democracy in the UK after Brexit

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Separation of Powers: A System of Checks and Balances

Because, 'All Men Having Power Ought be Mistrusted'

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The governmental concept of the separation of powers was incorporated into the U.S. Constitution to ensure that no single person or branch of the government could ever become too powerful. It is enforced through a series of checks and balances.

Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.

History of the Separation of Powers

Founding Fathers like James Madison knew all too well—from hard experience—the dangers of unchecked power in government. As Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Therefore, Madison and his fellow framers believed in creating a government administered both over humans and by humans: “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The concept of separation of powers, or “trias politics,” dates to 18th century France, when social and political philosopher Montesquieu published his famed "The Spirit of the Laws." Considered one of the greatest works in the history of political theory and jurisprudence, "The Spirit of the Laws" is believed to have inspired both the United States Constitution and France's Declaration of the Rights of the Man and of the Citizen.

The model of government conceived by Montesquieu had divided the political authority of the state into executive, legislative, and judicial powers. He asserted that ensuring that the three powers operate separately and independently was the key to liberty.

In American government, these three branches, along with their powers, are:

• The legislative branch , which enacts the nation’s laws
• The executive branch , which implements and enforces the laws enacted by the legislative branch
• The judicial branch , which interprets the laws in reference to the Constitution and applies its interpretations to legal controversies involving the laws

So well-accepted is the concept of the separation of powers that the constitutions of 40 U.S. states specify that their own governments be divided into similarly empowered legislative, executive, and judicial branches. 

Three Branches, Separate But Equal

In the provision of the three branches of governmental power into the Constitution, the framers built their vision of a stable federal government, assured by a system of separated powers with checks and balances.

As Madison wrote in No. 51 of the Federalist Papers , published in 1788, “The accumulation of all powers, legislative, executive, and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

In both theory and practice, the power of each branch of the American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote from both houses .

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

The following are the specific powers of each branch that demonstrate the way they check and balance the others:

Executive Branch Checks and Balances the Legislative Branch

• President has the power to veto laws passed by Congress.
• Can propose new laws to Congress
• Submits the Federal Budget to the House of Representatives
• Appoints federal officials, who carry out and enforce laws

Executive Branch Checks and Balances the Judicial Branch

• Nominates judges to the Supreme Court
• Nominates judges to the federal court system
• President has the power to pardon or grant amnesty to persons convicted of crimes.

Legislative Branch Checks and Balances the Executive Branch

• Congress can override presidential vetoes with a two-thirds vote from both chambers.
• Senate can reject proposed treaties with a two-thirds vote.
• Senate can reject presidential nominations of federal officials or judges.
• Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury).

Legislative Branch Checks and Balances the Judicial Branch

• Congress can create lower courts.
• Senate can reject nominees to the federal courts and Supreme Court.
• Congress can amend the Constitution to overturn decisions of the Supreme Court.
• Congress can impeach judges of the lower federal courts.

Judicial Branch Checks and Balances the Executive Branch

• Supreme Court can use the power of judicial review to rule laws unconstitutional.

Judicial Branch Checks and Balances the Legislative Branch

• Supreme Court can use the power of judicial review to rule presidential actions unconstitutional.
• Supreme Court can use the power of judicial review to rule treaties unconstitutional.

But Are the Branches Truly Equal?

Over the years, the executive branch has—often controversially—attempted to expand its authority over the legislative and judicial branches.

After the Civil War, the executive branch sought to expand the scope of the constitutional powers granted to the president as Commander in Chief of a standing army. Other more recent examples of largely unchecked executive branch powers include:

• The power to issue executive orders
• The power to declare local and national emergencies
• The power to grant and revoke security classifications
• The power grant presidential pardons for federal crimes
• The power to issue presidential bill signing statements
• The power to withhold information from Congress through executive privilege

Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. Though they are technically correct, it is how the Founding Fathers intended the government to operate.

Our system of the separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government. Specifically, it does so in that the legislative (lawmaking) branch, as the most powerful, is also the most restrained.

As James Madison put it in Federalist No. 48 , “The legislative derives superiority…[i]ts constitutional powers [are] more extensive, and less susceptible to precise limits…[it] is not possible to give each [branch] an equal [number of checks on the other branches].”

Today, the constitutions of forty U.S. states specify that the state government is divided into three branches: legislative, executive, and judicial. Illustrating this approach and its inherent separation of powers, the California constitution states, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

While separation of powers is key to the workings of the American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap, being too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

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Legal Dictionary

The Law Dictionary for Everyone

Checks and Balances

Checks and balances is a system for making sure that one department does not exceed its bounds, or for guarding against fraud and errors. In the U.S. government, the system of checks and balances is set to be a sentry over the separation of powers , balancing the separate branches of government . In a system of checks and balances, the authority to take an action, or make a decision, rests with one department, while the responsibility to verify the decision or action rests with another. To explore this concept, consider the following checks and balances definition.

Definition of Checks and Balances

• A system in which various divisions of an organization have powers that affect or control other divisions, so that no division becomes too powerful, or to minimize error.
• Limits placed on all branches of government by giving each branch a right to void or amend the actions of another branch.

1787    Date of origin in the U.S. Constitution

What is Checks and Balances

The term “checks and balances” refers to a system in which departments or divisions of a government or company have some control over one another. This helps to ensure that neither department takes to itself more power than originally intended. It also helps prevent costly mistakes resulting from one department’s error, or improper behavior, as another department is tasked with checking on its work. A system of checks and balances is especially important in large organizations, such as corporations and governments, where individuals, such as department heads, make decisions that can have a profound effect on the entire organization.

Checks and Balances in Business

In business, checks and balances are important to help maintain financial health and adherence to company policies. Most large corporations have a system of checks and balances, but many small business owners don’t even think about it. It is true that instituting a system of checks and balances can cost more money each year, but the fact is, a mistake or theft from company accounts can have a much more devastating effect on a small business, as its reserves are considerably smaller.

By separating the functions and responsibilities of various employees into roles that are clearly defined and limited, business owners are more likely to prevent employees from making costly mistakes, or intentionally doing something to damage the company.

checks and balances examples:

At ABC Home Supply, Cara is responsible for writing checks to pay the company’s bills, purchasing inventory and supplies, and bookkeeping. This is a huge responsibility, as all of the company’s money passes through her hands, so to speak, on its way to its various destinations. Cara’s husband lost his job about four months ago, and they are feeling the financial pinch.

Their daughter wants to go to summer camp, and her dance fees are due as well. After a heartrending conversation with her daughter about either dropping dance or going to camp, Cara makes a decision: to “borrow” money from the company to pay for camp. She writes a $2,000 check to the camp on the company account, fully intending to pay the money back within a couple of months.

Unfortunately, Cara’s husband remains unemployed, and the money taken from the company gets left behind in the mount of unpaid debts. This type of theft from corporate bank accounts is not uncommon. In this example of checks and balances, had ABC Home Supply had separate departments to handle paying bills and overall bookkeeping, or some other arrangement in which one department checks up on the activities of the other, this could have been prevented.

Checks and Balances in Government

The Founding Fathers had a great interest in preventing tyranny from gaining a foothold in the new nation. To that end, the first three articles of the Constitution created three separate branches of government, vesting certain specific powers with each. Dividing authority between each of these branches, Executive, Legislative, and Judicial, was their way of balancing the power of the federal government , preventing any one division from gaining too much power over the people. In addition to division of powers, each branch of government is given power to check up on, and even veto or disapprove decisions or actions of, another branch of government.

Examples of Checks and Balances

• The President may veto a law passed by Congress. Congress may then override the veto if a minimum of two-thirds of members of both the House of Representatives and the Senate vote to do so. This system takes longer, but prevents either Congress or the President from having absolute power in any decisions or in lawmaking.
• Supreme Court may declare a law passed by Congress unconstitutional. Because judges of the Supreme Court are appointed by the President, the power here is balanced between all three branches.

Checks and Balances Analogy

Understanding the governmental system of checks and balances is much easier if it is likened to a baseball game. Baseball coaches tell the players what to do, similar to how the President gives direction to the executive branch. There are certain rules that must be followed, which are like the laws passed by the legislative branch (Congress). Finally, there are referees that make judgments about whether the players did something wrong, and to interpret the rules, much like the judicial branch interprets the law and the Constitution.

Checks and Balances Examples in Declaration of War

The President of the United States is the Commander in Chief of its military, though the Supreme Court has made a definitive point that the President is not commander in chief over the country. This issue has come up in times of conflict, as presidents have made decisions on the razor’s edge of whether the nation was at war. In truth, Congress, not the President, has power to declare war on any nation or entity, including al Qaeda and ISIS. The issue of presidential authority in declarations of war, and other important issues related to war and other hostilities offers a prime example of how checks and balances work in limiting presidential power.

In 2003, President George W. Bush followed the necessary protocol of having Congress declare war on the nation of Iraq, based on a suspicion that the government there was illegally harboring weapons of mass destruction. In 2011, after the 9/11 terror incidents, President Bush applied the term “enemy combatant,” which had previously been used to refer to as “Any person in an armed conflict who could be properly detained under the laws and customs of war,” to alleged members of al Qaeda and the Taliban being held in custody by the U.S. He did this as part of the “war on terror,” because it stripped the prisoners (or “detainees”) of any rights as prisoners-of-war under the Geneva Convention.

The system of checks and balances came into play when the U.S. Supreme Court reigned in President Bush’s detainment of people, both U.S. citizens and foreigners, in offshore facilities, without being given legal counsel , and with no intention of putting them through the legal system. The Court ruled that it is the basic human right to legal counsel and due process that defines the constitutional separation of powers, and the American doctrine of government.

While no detainees were ordered released at that time, the president was forced to go through Congress for authorization to deal with terror suspects in such a manner. Publicity of this process led to many Americans questioning the administration’s policies on handling, detention, and questioning of enemy combatants, which the administration insisted on calling “detainees,” rather than prisoners. This example of the system of checks and balances in action had many citizens who were originally gung-ho on tracking down terrorists and making them pay for the acts of 9/11, expressing doubt about President Bush’s handling of the “war on terrorism .”

Americans Demanding Checks and Balances in Presidential Powers over Terrorism

In September 2014, President Barak Obama outlined a plan to expand the U.S. role in fighting terrorism in Syria and Iraq. This came on the heels of distressing actions by a terror group known as “ISIS.” The frightening acts included a series of shootings in public places, kidnappings, stabbings, and bombings in countries around the globe. The American people, however, were understandably war weary, and began speaking up about a need for Congress to exercise its checks and balances powers in determining whether the U.S. should take this offensive stand in the middle East.

In response to these concerns, President Obama further explained the plan to involve the U.S. in a broad effort to “degrade and destroy and ultimately destroy ISIL.” He went on to say:

“I want the American people to understand how this effort will be different from the wars in Iraq and Afghanistan. It will not involve American combat troops fighting on foreign soil. This counterterrorism campaign will be waged through a steady, relentless effort to take out ISIL wherever they exist using our air power and our partner forces on the ground.”

The President then announced, “I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.” While the President of the United States has certain authority to direct the military in dealing with such threats, President Obama acknowledged here that the American people respond better when the system of checks and balances is not railed against, but used in deciding a course of action that could have widespread consequences.

Related Legal Terms and Issues

• Commander in Chief – The role of the United States president as highest ranking officer in the armed forces.
• ISIL vs ISIS – The term “ISIS” refers to a terrorist movement existing within the Iraq and Syrian borders (Islamic State in Iraq and Syria). The term “ISIL” refers to the same terrorist movement as it has spread throughout the Middle East in whole. The “L” stands for “Levant,” which means “region.” Although Americans use the term ISIS to refer to the entire Islamic State terrorist movement, the correct term for the global upheaval is ISIL.
• Legislation – A law, or body of laws, enacted by a government.
• Veto – The power of a president or governor to reject a bill proposed by the legislature.

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General Education

If you’ve tuned into the news lately, you’ve seen the checks and balances system of government at work. Whether it’s courts striking down executive orders or governors vetoing legislation , checks and balances are constantly working to keep the United States government functioning.

But what are checks and balances, exactly? And how do they help make democracy work?

Although it’s important for everyone to understand the checks and balances system, it’s especially critical for you to understand if you’re taking a government course. Additionally, since a system of checks and balances plays an essential role in the U.S. federal government, the concept will also be a heavy contender for an AP exam free response question.

That’s a lot to cover, huh? Not to worry, though! By the end of this guide, you’ll have all the information you need to

• Answer the question, “What are checks and balances?”
• Write your own checks and balances definition
• Identify pros and cons of a checks and balances government
• Explain various checks and balances examples
• Analyze real-life examples of checks and balances

Let’s get going!

What Are Checks and Balances? Definition and History

A system of checks and balances places limitations and controls on the power and responsibility of each branch of government. You probably already know that the United States government isn’t the only government in the world that depends on a system of checks and balances to function properly, but for our purposes, we’re going to focus on how the system of checks and balances functions in the United States’ form of government.

To really understand why checks and balances are such a big deal in the United States government, we need to start with the following:

• Where the idea of checks and balances comes from
• How checks and balances fit into the United States’ form of government

Understanding the history and background of our checks and balances government will lay the foundation for a checks and balances definition that you can use on the AP exam.

Where the Idea of Checks and Balances Comes From

Two key influences shaped the Founders’ decision to build a system of checks and balances into the United States Constitution:

• The Founders’ experiences with the government of Great Britain
• The writings of the eighteenth century French political philosopher, Baron de Montesquieu

The overbearing behavior of the English monarchy inspired the thirteen colonies to declare independence and influenced the Founders to form a government system that was built on the ideas of liberty and freedom. They wanted to form a government in the United States that guarded against the kind of overreach they’d witnessed in the English government.

That’s where the writings of Baron de Montesquieu came in. Montesquieu originated the political doctrine of separation of powers within a government. (Spoiler alert: checks and balances are the result of this idea!) In his The Spirit of the Laws, Montesquieu argued for a constitutional government comprised of three separate branches . And these separate branches, Montesquieu argued, should have specific abilities to check the powers of the other branches.

In other words, Montesquieu imagined a balanced government where no one branch was more powerful than the other.

Montesquieu’s philosophy heavily influenced the writing of the U.S. Constitution and the Founders’ establishment of the three branches: the executive branch, the legislative branch, and the judicial branch. The Founding Fathers believed that implementing a system like this in the United States would help keep government power in check and allow citizens to have more freedom.

A Constitutional Democracy: The Vehicle for a System of Checks and Balances

The Founders’ vision for a government that separated powers took the form of a constitutional democracy . A constitutional democracy is a political system in which the federal government gets its authority to govern from the people. (Actually, you can learn tons more about it means to be a democracy in this article !) But in general, constitutional democracies like the United States are designed to do two things.

First, their primary job is to protect the fundamental rights of every citizen, regardless of economic status, race, or class. Second, constitutional democracies limit the amount of government power through a series of limits established by the United States Constitution, which are more commonly referred to as “checks and balances.” These checks and balances include things like:

• Separation and sharing of powers among the different branches of government
• Giving adequate power to different branches to check the powers of other branches
• Protection of individual rights by due process of law.
• Elections at frequent intervals that enable changes in leadership and transfer of governmental authority.

So what’s important for you to remember about this description of a constitutional democracy? The big takeaway is that the system of checks and balances was written into the U.S. Constitution because the Founders knew it would be essential to the proper functioning of the United States’ form of government.

But implementing a system of checks and balances doesn’t end with writing it into the Constitution--that’s just the beginning. The Constitution holds the three branches of the U.S. federal government responsible for adhering to the system of checks and balances.

To add to your working checks and balances definition, we’ll explain the three branches of the federal government and how they work within the system of checks and balances next.

The 3 Branches of the United States Federal Government

Checks and balances can work in many different ways and hold varying levels of importance in a government that employs such a system. In the U.S. Constitution, the three branches of the federal government were designed to operate separately and independently, but to be equal. In other words, no single branch should have more power than either of the others.

Here’s how the system of checks and balances works in practice in the United States : one branch is given the power to take a given action, and another branch (or branches) is given the responsibility to confirm the legality and appropriateness of that action. That’s just a fancy way of saying that every time one branch makes a decision, it’s the responsibility of the other branches to evaluate it.

The system of checks and balances facilitates a reciprocal relationship between the different branches of the U.S. federal government. The three branches need each other—under the Constitution, the federal government couldn’t fulfill its duties to the people without the proper function of each individual branch.

To understand how the three individual branches work independently and together in a system of checks and balances, let’s define and examine each branch next.

The U.S. Capitol  building

The Legislative Branch

The legislative branch of the federal government is established by Article One of the Constitution and is known as the United States Congress. Congress is in charge of creating laws and is made up of the Senate and the House of Representatives. The legislative branch is big: there are 100 members of the Senate, called Senators, and 435 members of the House of Representatives, called U.S. Representatives or Congresspersons.

As the biggest branch of the federal government, Congress has a lot of responsibilities , which include:

• Passing bills
• Broad taxing and spending power
• Regulating interstate commerce
• Controlling the federal budget
• Borrowing money on the credit of the United States
• Sole power to declare war and to support and regulate the military
• Overseeing and making rules for the government and its officers to follow
• Defining the jurisdiction of the federal judiciary by law in cases not specified by the Constitution
• Ratifying treaties
• Sole power of impeachment and trial of impeachments

You might be gathering from the list of responsibilities above that the legislative branch’s overarching responsibility is creating, providing for, and controlling: they draft laws, pass bills, make rules, declare things, and make sure that the other branches are following the rules. In other words, they legislate .

The U.S. White House

The Executive Branch, Defined

The executive branch of the federal government is established by Article Two of the Constitution and is made up of the president, the vice president, the Cabinet, executive departments, independent agencies, and other boards, commissions, and committees.

When we hear the word “executive,” a powerful individual in a well-tailored suit might pop into our minds. Just because the President of the United States is the head of the executive branch doesn’t mean they’re a lone wolf, though . All of the other members of the executive branch support and advise the president, and actually do a lot of the work in the executive branch.

The Cabinet is comprised of the vice president and the heads of the fifteen executive departments. These department heads have titles like “secretary,” “director,” or “administrator,” and they’re in charge of everything from the Department of Homeland Security, to the Department of Transportation, to the Department of Education.

For example, the Secretary of State and the Secretary of the Treasury are both heads of their respective departments and members of the president’s Cabinet. The Secretary of State advises the president on foreign affairs, and the Secretary of the Treasury advises the president on economic affairs.

The Cabinet may also be asked to advise the president on responsibilities or decisions that pertain to executive checks on the other two branches, or the executive branch’s response to checks initiated by the other two branches on the executive branch. This is one key way that the president receives both support and accountability in carrying out the duties of the executive branch.

Now that you know who makes up the executive branch, let’s look at the executive branch’s key responsibilities :

• The President is the commander-in-chief of the armed forces
• Executes the instructions of Congress
• May veto bills passed by Congress
• Executes the spending authorized by Congress
• Declares states of emergency, publishes regulations and executive orders
• Makes executive agreements and signs treaties
• Makes appointments to the federal judiciary, federal executive departments, and other posts
• Can grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

You’re probably gathering from this list that the executive branch’s main role is to implement and enforce federal laws . It’s called the “executive” branch for a reason, right? The executive branch executes: it makes sure that the right stuff gets done . It puts plans into action and carries out different laws and orders.

The U.S. Supreme Court building

The Judicial Branch, Defined

The judicial branch is established by Article Three of the Constitution, and it’s the judicial branch’s job to evaluate, interpret, and apply laws. The judicial branch is made up of three different courts: the Supreme Court, the Appellate Courts, and the District Courts. Let’s look at what each of the three courts within the judicial branch can do.

The Supreme Court

The Supreme Court is the highest federal court in the United States and is the head of the judicial branch . It’s made up of one Chief Justice and eight Associate Justices. Appointments to the Supreme Court are made for life, so when the President nominates justices and the Senate approves them, it’s a really big deal.

The Appellate Courts

The Appellate Courts--also called courts of appeals--are the intermediate courts of the U.S. federal court system. There are thirteen of them, and they serve as a sort of go-between for the Supreme Court and the more numerous District Courts. The Appellate Courts hear appeals from the District Courts and, when appropriate, appeals court decisions to the Supreme Court.

The District Courts

The District Courts are the final component of the judicial branch. The District Courts are where federal trials happen , which is a big responsibility, as there are 94 juridical districts in the United States. Their jurisdiction covers both civil and criminal federal cases.

The Judicial Branch’s Responsibilities

Now that you know about the different courts that make up the judicial branch, here are the primary responsibilities of the judicial branch :

• Determining which laws Congress intended to apply to any given case
• Determining how Congress meant the law to apply to disputes
• Determining how a law acts to determine the disposition of prisoners
• Determining how a law acts to compel testimony and the production of evidence
• Determining how laws should be interpreted to assure uniform policies through the appeals process
• Reviewing the constitutionality of laws through judicial review

You can probably tell from the language used in the list of responsibilities above that the Judicial branch’s primary responsibility is dealing with interpretation : the Judicial branch interprets laws, policies, cases, testimony and evidence through the Constitution.

The system of checks and balances works like gears in a machine. It takes the work of all three branches of government in unison to keep the country running. 

How Does the Checks and Balances System Work in the United States?

Now you know about the three branches of government: who the key players are, what they do, and why they do it. Examining the checks and balances that are assigned to each individual branch is the next step to getting you better acquainted with how each branch works.

When we described the responsibilities of each branch in the previous sections, we were simultaneously describing how they check the other branches of the federal government. But we think it might be easier to envision how those responsibilities function explicitly as checks and balances if we place them side by side in a table. If you’re a visual learner, this is for you!

Looking at all of the checks and balances in one place can also help you think critically about the reciprocal relationship between the different branches and the specific ways that they work together on different topics, issues, and areas of the federal government.

To give you a better idea of how the branches work together to check each other, we’ve laid out the different checks and balances in a table below. Each row explains how the branches of government check and balance each other around a specific topic.

Let’s take a look:

Checks and Balances of the 3 Branches of Government

Whew! That’s a lot of checks and balances and political jargon. Let’s make sense of all this info by identifying some pros and cons of how the powers and responsibilities are distributed in the U.S.’s version of the system of checks and balances.

5 Pros and Cons of a Checks and Balances System

Now you have a visual for how checks and balances are assigned and distributed among the three different branches of the U.S. federal government. But what does this all mean?

First, it’s important to recognize that the different branches of the federal government aren’t in some kind of antagonistic relationship because of the system of checks and balances. They don’t act like rival sports teams (usually)! Instead, t he powers and responsibilities assigned to each branch were intricately coordinated by the writers of the Constitution so the government would operate collectively in the best interest of the people.

But it’s a fact of political life that no government system is perfect in practice. On the AP exam, you might be asked to explain or analyze an instance in which the system of checks and balances didn’t do its job, or perhaps to analyze a situation when the system of checks and balances worked to the advantage of U.S. citizens.

In order to do this, you’ll need to understand some of the pros and cons of the U.S.’s checks and balances system so you can give a stellar checks and balances definition and analyze and explain checks and balances examples on your own.

Check out our list of 5 pros and cons of checks and balances below  to help grow your understanding of how the system can work in action.

Pro: They Keep a Single Group From Grabbing too Much Power

We’re bringing this one up again because it’s the main concept behind implementation of a system of checks and balances: checks and balances guard against tyranny and abuse of power by preventing an individual or small group within the government from seizing too much power.

We see this exemplified best in the relationship between the legislative, executive, and judicial branches where creating and passing laws is concerned. The legislative branch can propose bills or laws, the executive branch can veto them, the legislative branch can override the executive veto through a two-thirds vote, and the judicial branch can declare laws unconstitutional.

In the process of passing legislation, then, no one individual or branch can grab an undue amount of power, and that’s one of the things that the system of checks and balances does best. It distributes power as evenly as it can among the different branches of the government.

Pro: They Get the Government to Self-Regulate

What’s key in thinking about checks and balances as an important way to prevent tyranny is that they make the government to check itself and limit its own influence. Though it isn’t fun to think about the possibility of our government becoming tyrannical, the system of checks and balances prevents any self-interested minority within the government from grabbing too much power and acting only in the interests of its group.

On the flip side, smaller factions or groups in the minority within the government are always going to keep a close eye on the group that’s in the majority. They’ll be eager to make sure the majority group aren’t getting up to any funny business. If there are corrupt practices going on in the majority, the minority groups in the government will certainly call those out.

Political parties are a classic example of how self-regulation can occur in the government. For instance, when the Republican party holds the majority in the House or the Senate, the Democrats in the House and the Senate are extra vigilant about keeping the Republican majority in check.

Loyalty to political parties presents plenty of challenges to the system of checks and balances, but the inherent competition between the different political parties represented within the legislative branch can often serve to check the power of self-interested groups .

Pro: They Provide Constitutional Support for Disagreements Between the Branches

Checks and balances enable the three branches of government to disagree. In a system that separates power among different institutions comprised of many different people, multiple minds work to interpret the Constitution. And when multiple minds are doing that interpreting, disagreements about what is and is not constitutional can arise.

That might seem antagonistic and counterproductive to getting things done in the government, but the ability for the different branches to disagree is in the interest of the liberty of the people .

When the different branches of the government have the opportunity to work through disagreements about various decisions that affect the people, decisions are made more deliberatively. And the government has the power to make huge decisions, so the slower pace of decision-making enabled by the system of checks and balances can help ensure that these decisions are the best ones.

Con: They Can Complicate Policymaking

The flip side of constitutional support for disagreements among the different branches is that policymaking can be much more time consuming. One branch can propose a law, another can veto it, and another can say that that law violates the Constitution, and so on.

Sometimes the three branches won’t agree and a stalemate will ensue . . . meaning no policy changes occur, or they’re put off for a long time. This can be a good thing in some cases, especially when there is a majority in the House and the Senate who only have the interests of one political party or ideology in mind in policymaking.

But sometimes the people want change, and the main thing standing in the way of changes occurring is the different branches’ uses of the system of checks and balances.

Con: The System Doesn’t Always Work as Originally Intended

Interpreting the Constitution has proven tricky as the United States has grown and changed. For example, the writers of the Constitution couldn’t have predicted the United States’ massively expanding population, the technological revolution, or global conflicts like World War I and World War II..

All of these changes affect the way the Constitution is interpreted--which includes how checks and balances are understood and implemented. This has led to internal conflicts within the three branches of government. There have been points in history where different branches have tried to expand their power beyond what was originally outlined in the Constitution, and sometimes, the branches have succeeded. For example, to defend the U.S. and its economy against fascist foreign powers, President Franklin D. Roosevelt’s New Deal restructured the federal government and greatly expanded executive powers.

So why is this a “con,” exactly? Remember: the system of checks and balances exists to make sure that no one branch of government is stronger than the other. When one branch tries to expand its power, it runs the risk of throwing the “balance” part of the “checks and balances” process out of equilibrium. That opens up a chance for an overreach of power, which can potentially put citizens’ freedoms at risk.

Former President Bill Clinton, who was the President of the United States from 1993–2001

What Are Checks and Balances Like in Action? 

To really hone your understanding of checks and balances, examples are essential! Checks and balances can play out in interesting ways in real-life situations, so we’re going to summarize and break down one example for you to reference here.

The example we’re going to look at is the Line Item Veto Act of 1996 , which led to a Supreme Court case involving President Bill Clinton in 1998 . This example is kind of a doozy—the checks and balances enacted by all three branches in this situation played out over a decade . . .  and the Line Item Veto Act still failed to win approval in Congress and become law.

Let’s get into the details of the Act and the case and see what it can teach us about checks and balances.

The Line Item Veto Act of 1996: Background

The Line Item Veto Act of 1996 allowed the president—Bill Clinton, at that time—to veto parts of bills selectively, rather than vetoing bills in their entirety. The main purpose of this Act was to give the president more control over the details of the federal budget--a power that was constitutionally reserved for Congress .

Congress successfully passed this legislation in 1996. How did that happen? Well, in the federal midterm elections of 1994, Republicans took over the House and the Senate from Democrats. This was seen as a pretty big upheaval. It’s even been called the “ Republican Revolution !”

The Republicans also succeeded in taking the majority in Congress by making a pretty hefty campaign promise to the American people in the form of the “ Contract with America .” The Contract with America was basically a long list of actions the Republican candidates promised to take if they gained control of Congress.

The Line Item Veto Act was a key piece of the Contract with America. The American people liked this Act because it promised to ensure congressional fiscal conservatism. In fact, they had that in common with then-President Clinton: the only provision in the Contract with America that he was willing to support was the Line Item Veto Act.

Since Republicans controlled Congress, and since the president supported the Line Item Veto Act, it passed both the legislative and executive branches without being vetoed or rejected. And then things started to get a bit ugly.

The Judicial Branch Acts

In the time that the Line Item Veto Act was law, President Clinton did a lot of line item vetoing. In fact, he applied the line-item veto to the federal budget 82 times.

Does that sound like a lot? It did to the people who were affected by the president’s line-item vetoes, and that’s where the checks and balances started coming into play.

When the Act was passed in 1996, lots of Democrats broke with President Clinton to oppose it. A congressman even sued to prevent use of the line-item veto. At the time, the Supreme Court held that the congressman’s case lacked standing because he couldn’t give any specific examples of how the Line Item Veto Act was causing harm to people.

But when President Clinton began using the line-item veto a little more liberally, more people filed suit. Since Clinton was making ample use of his new power, this time, the plaintiffs had specific examples of how the line-item veto was causing harm. The City of New York itself and several other healthcare organizations alleged fiscal injury from President Clinton’s cancellation of various provisions from Acts that were passed in 1997.

The case— Clinton v. City of New York —went before the District Court, and the Court ruled in favor of the plaintiffs. This time, the Court held that the Line Item Veto Act was unconstitutional. The District Court then used its power to appeal to the Supreme Court. The case was headed to the highest federal court in the United States.

In 1998, the Supreme Court ultimately ruled that the Line Item Veto Act violated the Presentment Clause of the Constitution , which outlines a specific practice for enacting a statute that the Act did not follow.

The Supreme Court used their power of interpretation to rule that the Constitution expressly prohibited the actions that the Act enabled the President to take. The majority of the Supreme Court, in other words, believed that the Act violated principles of the separation of powers and threatened individual liberty by giving the President the power to reward or favor certain groups and punish others.

Former President George W. Bush, who was President of the United States from 2001–2009

The Legislative Branch Acts

In 2006, the Line Item Veto Act came up again. That year, President George W. Bush asked Congress to enact legislation that would return the line item veto power to the executive branch, and announced his intent to make this request in his State of the Union Address . In March 2006, President Bush sent a legislative proposal to Congress and urged its prompt passage.

Anticipating dissent from some members of Congress and the Supreme Court, members of President Bush’s Cabinet argued that his version of the Act was different from the Line Item Veto of Act of 1996 because the new proposal would seek congressional approval of all line-item vetoes, instead of giving the executive unilateral authority for such vetoes.

Many members of Congress didn’t buy this argument. Some still believed that the legislation would take away parts of Congress’s constitutional power and give it to the executive branch instead.

After hearing arguments from constitutional law experts about the constitutionality of the bill, t he House Budget Committee approved the proposed Act through a majority vote. The full House of Representatives voted and approved the same bill soon after, but it failed to win approval in the Senate.

But because the Act didn’t win full approval by Congress, the Legislative Line Item Veto Act of 2006 didn’t become law.

Summary of the 4 Checks and Balances Involved in This Example

If you were paying attention, you may have picked out some of the checks and balances that were involved in the whole scenario surrounding the Line Item Veto Act. To help you out, here’s a list of the checks and balances that we found playing a role in this legislation :

• The legislative branch wrote and enacted a law: the Line-Item Veto Act of 1996.
• The judicial branch determined whether that law was unconstitutional in 1998.
• The executive branch influenced the legislative branch with its proposed agenda in the State of the Union address in 2006, when President Bush announced his plan to attempt to pass the Legislative Line Item Veto Act.
• The legislative branch rejected the Legislative Line Item Veto Act by a vote in 2006.

The Line-Item Veto Act of 1996 is a great example of how we can understand the federal government’s powers as being both divided and shared . In some aspects of this case, branches used their powers to work together to keep another branch from doing something that was not constitutional and that potentially threatened the liberty of the people.

By checking each other in this case, the different branches also defended their own constitutional powers by preventing the executive branch from claiming powers that the Constitution assigned to the legislative branch.

This example shows how real-world cases of checks and balances in action have a lot of layers: there’s a lot to analyze and unpack, and sometimes who’s right and who’s wrong isn’t easily defined. That’s why it’s important to look at both the big picture situation and all of the details, which is key to making sense of checks and balances in action!

What's Next?

This is just an overview of how checks and balances work within the United States government. (We know...it’s a lot!) There’s a lot more to learn about how each individual branch checks the other. A good place to start is learning more about how the Executive branch checks the Judicial branch .

The AP U.S. Government exam is about more than just how the federal government works, though. That’s why we’ve developed the best 5-step guide to help you prepare .

Once you’ve worked your way through that, it’s time to drill deeper into the material you need to know to ace the exam. Here’s a list of the best AP U.S. Government notes on the internet , and here’s a step-by-step guide to acing the AP U.S. Government’s FRQs .

Ashley Sufflé Robinson has a Ph.D. in 19th Century English Literature. As a content writer for PrepScholar, Ashley is passionate about giving college-bound students the in-depth information they need to get into the school of their dreams.

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The Constitution's Checks and Balances

Lesson overview and student learning objectives.

The purpose of this lesson is to focus on the place and importance of the system of checks and balances in the U.S. Constitution. The Background Essay for this lesson distinguishes the concept of checks and balances from the separation of powers investigated in an earlier lesson. It touches on the thinking of James Madison and other Founders about the importance of checks and balances as a means of restraining governmental power and protecting the liberties central to the meaning and purpose of the American republic. The activity for the lesson introduces the concept of judicial review and asks students to look closely at one important Supreme Court case. The case raises questions in a dramatic way about the place of checks and balances in the functioning of the federal republic the Constitution brought into being.

When the lesson is completed:

• Students will be able to define the concept of checks and balances and will have a sense of what each of these two terms means.
• Students will be able to identify several of the key checks and balances embedded in the Constitution and will appreciate the importance of these features in establishing an effective yet limited government.
• Students will understand the concept of judicial review and will consider two sides in a case in which the Supreme Court acted to check the President’s actions in order to maintain the separation of powers. 

Teacher Directions

Before this class meets :  As homework or during an earlier class period, have students read the Background Essay “The Constitution’s Checks and Balances” and the three sources for this lesson. (Some of this reading could be done during class if it seems time will permit.) The Background Essay deals with the checks and balances the founders believed to be an essential feature of the U.S. Constitution. The three sources all have to do with the 1952 Supreme Court case  Youngstown Sheet & Tube Co. v. Sawyer , which deals with Legislative versus Executive powers. The case also calls attention to the Supreme Court’s power of judicial review. 

In class:  Briefly discuss all these readings and address any questions the students have about them. Then provide each student with a copy of the Student Activity sheet. This poses four questions about  Youngstown Sheet & Tube Co. v. Sawyer.  Have each student write brief answers to these questions. Leave 15 minutes or so for students to share their answers in an all-class discussion.

Extension Activity :  Ask a small group of students to read and discuss  Federalist 51 . Have the group choose two or three short passages from it that best illustrate what Madison means by the phrase “ambition must be made to counteract ambition” Have the group prepare a brief report to the class explaining the importance of  The Federalist 51  to an understanding of why the Founders thought checks and balances so important a part of the U.S. Constitution.   

Suggested Grade Level:

12th grade 

Time to Complete:

One class period plus prior reading as homework

Terms and Phrases to Understand  (In order of their appearance in the lesson material.)

• plaintiff  – person or entity that files a lawsuit against another in a court of law.
• republic  – a government ruled by a group of representatives of the larger body of citizens.
• veto  – the right of one branch of government to cancel or overrule the actions of another branch.
• judicial review  –  The ability of a court to review actions of the government to determine if they violate the U.S. Constitution. 
• null and void  – not legally valid or enforceable.
• injunction  – a judicial order restraining a person or group from taking an action or an order telling a person or group to take a specific action.
• statutory authorization  – a power given to an official or agency by a law passed by the legislature.

Sources to Read

This lesson’s Background Essay: “The Constitution: Why a Separation of Powers?”

The following are located in the “Sources for this Lesson” section and fully at the indicated link. 

• Source 1: Background Information on  Youngstown Sheet & Tube Co. v. Sawyer.
• Source 2: From Justice Hugo Black’s Majority Opinion in  Youngstown Sheet & Tube Co. v. Sawyer.  Available from Justia at:  https://supreme.justia.com/cases/federal/us/343/579/
• Source 3: Part of Justice Fred Vinson’s Dissent in  Youngstown Sheet & Tube Co. v. Sawyer.  Available from Justia at:  https://supreme.justia.com/cases/federal/us/343/579/
• Optional:  The Federalist Papers, No. 51 . Available from Yale Law School’s Avalon Project at:  https://avalon.law.yale.edu/18th_century/fed51.asp

Standards Met by this Lesson

American Birthright Learning Standards: Grade 12, No. 3; Grade 12, No. 13; Grade 12, No. 21; Grade 12; No. 22; Grade 12, No. 24.

Sources for Teacher Enrichment

• M. E. Bradford,  Original Intentions: On the Making and Ratification of the United States Constitution  (University of Georgia Press,1993).
• Bruce Frohnen,  The American Republic: Primary Sources  (Liberty Fund, 2002).
• Donald S. Lutz,  The Origins of American Constitutionalism  (Louisiana State University Press, 1988.)  
• James Madison,  Federalist 51 , in  The Federalist Papers  (Dover Thrift Editions, 2014). Also available from Yale Law School’s Avalon Project at:  https://avalon.law.yale.edu/18th_century/fed51.asp
• Charles de Montesquieu,  The Spirit of Laws  (Cambridge University Press, 1989).
• Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952), Available from Justia at:  https://supreme.justia.com/cases/federal/us/343/579/

Background Essay:

The constitution’s checks and balances.

Americans often refer to their own government as a “democracy.” However, the Founders were not in favor of democracy in any pure form. Looking back to Athens in ancient Greece they saw the direct rule of Athenian citizens as chaotic and conflict-ridden. Above all, they feared democracy would lead to a “tyranny of the majority.” That is, a majority of citizens would trample on the rights of minorities and on the liberty of the individual. To prevent this, the Founders instead created a complex constitutional republic, not a democracy.

A republic does provide for some degree of indirect democracy. That is, citizens elect a small number of representatives to a legislature which then makes decisions for them. The expectation is this small group of representatives will be knowledgeable and will deliberate carefully in coming to decisions. 

However, as bodies directly elected by the people, legislatures can still easily impose a tyranny of the majority. Americans at the time worried about this in part because of how powerful several state legislatures were after the Revolution. The Founders believed that determined majorities in some of these legislatures were in fact riding roughshod over the rights of others. One way they hoped to correct this was through the strict separation of powers into a legislative branch to make the laws, an executive branch (the President) to carry out the laws, and a judicial branch to enforce the laws through cases in the courts. This idea of separation of powers was not a new concept to the Founders at the time of the American Revolution. For example, they were long familiar with Baron Charles de Montesquieu’s writings in the mid-1700s in  The Spirit of the Laws  on separation of powers. 

In the Constitution, the powers of the three branches are not entirely separate. They overlap in many ways. For example, the President can report to Congress on the state of the nation, and he can recommend new laws for them to consider. In this and many other ways, the branches are able to work together. However, the Constitution also provides many ways by which one branch can prevent another branch from doing as it wishes. The phrase “checks and balances” refers to these ways.

One reason for these checks and balances is to make it hard for a tyranny of the majority to occur. However, there is another reason. The Founders did not only fear that a majority of citizens might abuse their power and impose a tyranny. They also feared that the government itself might impose a tyranny. As James Madison famously put it in  Federalist 51 (one of the essays in  The Federalist Papers ), “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.” The checks and balances were ways to do both things.

What were the “checks”? What were the “balances”?

The President can check the power of Congress by vetoing the laws it passes. However, Congress can pass a law despite a presidential veto with a two-thirds vote of both houses. Congress also has the authority to remove a president by impeaching him. The President negotiates treaties with other nations, but the Senate must approve them by a two-thirds vote. The President also appoints judges and top officials of his executive departments, but only with the advice and consent of the Senate. This appointing power gives both branches some control over the judicial branch. However, judges are very independent because of the “good behavior” tenure they enjoy, which means they can only be removed by impeachment for offenses such as criminal or treasonous acts. Politically divisive rulings do not meet this standard. If they wish, they can serve for life. This makes it easy for them to act independently in interpreting the laws. The Supreme Court has often checked the other branches by its power of judicial review – that is, its power of deciding whether acts by the President or Congress are constitutional and can be allowed to take effect.

When people speak of “checks and balances” they often think these two terms mean the same thing. However, some historians say the term “balances” refers to something else, to features that regulate the pace of change and keep the government from falling under the control of a suddenly aroused or angry majority. One such balance is maintained by the differing terms of office for the various parts of the federal government. Every two years, all members of the House of Representatives are elected to serve two-year terms. Senators serve six-year terms, and only one-third are elected every two years. This makes it hard for any suddenly arising movement to win over both the Senate and the House all at once. Meanwhile, Supreme Court Justices serving for life would also not be a part of any sudden majority seeking radical change. Senators are elected by entire states – and at first, they were chosen by state legislatures, not voters directly. (The 17 th  Amendment changed that in 1913.) Representatives are elected by much smaller districts. This means they are likely to respond to different groups of voters with different sorts of interests. These balancing factors make quick action by the entire government less likely. The Founders hoped this would produce a steadier, more thoughtful process of decision-making.

The Supreme Court has played a central role in making the Constitution’s checks and balances work. It does this by a power that is implied though not clearly defined in the Constitution itself – the power of judicial review. This is the Court’s power to decide whether a legislative or executive act violates the Constitution. If it decides the act does violate the Constitution, it declares that act “null and void.” This means the act is not legally valid and cannot be carried out. In the Student Activity for this lesson, you will consider two alternative views of a case in 1952 in which the Court did just that by ruling against an action President Harry Truman took. According to the Court, that action did violate one of the central checks the Constitution imposes on the President.

Sources for this Lesson

Source 1: background information on  youngstown sheet & tube co. v. sawyer.

Judicial review is a powerful “check” by which the Supreme Court can limit the power of the other branches. Among other things, it can keep them from violating the Constitution’s separation of powers. A good example of this was a case brought before it in 1952. By then, thousands of American soldiers had been fighting in Korea for two years. They depended on huge supplies of weapons and equipment, most of which the defense industries could not build without a steady supply of steel. In the spring of 1952, the steel mill owners and the steel workers were locked in a major dispute over wages. In April, the union announced it would strike and shut down most of the major steel companies. President Truman decided that he had to act to prevent shortages he regarded as a terrible threat to the war effort and the nation’s security. He therefore issued Executive Order 10340 directing his Secretary of Commerce Charles Sawyer to take over the steel mills and keep them running. Truman acted without asking Congress to authorize what he had done.

The steel companies went to court, and as a result a district judge issued an injunction ordering the government to return control of the plants to their owners. The government appealed the case, and the Supreme Court soon agreed to hear it. Youngstown Sheet and Tube Company was one of the steel companies bringing this case, which is therefore called  Youngstown Sheet & Tube Co. v. Sawyer.  By a 6-3 vote, the Supreme Court ruled that the president could not seize the steel mills without an act of Congress granting him that authority.

Source 2: From Justice Hugo Black’s Majority Opinion in  Youngstown Sheet & Tube Co. v. Sawyer

Usually when the Supreme Court rules in a case, one Justice writes a “majority opinion” explaining the reasons for the Court’s ruling. Sometimes, other Justices will write “concurring opinions” agreeing with the ruling but making other points about it. If any Justices vote against the ruling, one or more of them may write a “dissenting opinion” explaining why they opposed the Court’s ruling. Usually, all these opinions are long. They cite previous Court decisions and raise a great many points. This passage is just one small but key part of Justice Hugo Black’s majority opinion for  Youngstown Sheet & Tube Co. v. Sawyer . From the entire Supreme Court decision “Youngstown Sheet & Tube Co. v. Sawyer,” 343 U.S. 579 (1952). The entire decision is available from Justia at:   https://supreme.justia.com/cases/federal/us/343/579/

The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President to take both personal and real property under certain conditions. However, the Government admits that these conditions were not met, and that the President’s order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (§ 201(b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand”. . . .

The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall take Care that the Laws be faithfully executed”, and that he “shall be Commander in Chief of the Army and Navy of the United States.”

The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.

Source 3: Part of Justice Fred Vinson’s Dissent in  Youngstown Sheet & Tube Co. v. Sawyer

Chief Justice Vinson wrote a long dissent. He stressed the then current dire wartime situation in which the President needed to act quickly to protect the nation. In his view, the President as Commander in Chief has the authority to do what Truman did. The passages here are a small portion of Justice Vinson’s long dissent for  Youngstown Sheet & Tube Co. v. Sawyer . After these passages, Vinson listed many actions other Presidents had taken before getting the approval of a specific act of Congress, including several actions taken by President Roosevelt during the nation’s involvement in World War II. From the entire Supreme Court decision  Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952). The entire decision is available from Justia at:   https://supreme.justia.com/cases/federal/us/343/579/

The Plaintiffs [the steel companies bringing this case] do not remotely suggest any basis for rejecting the President’s finding that any stoppage of steel production would immediately place the Nation in peril. . . . The Union and the plaintiffs bargained for 6 months with over 100 issues in dispute – issues not limited to wage demands, but including the union shop and other matters of principle between the parties. At the time of seizure, there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiffs’ counsel tells us that “sooner or later” the mills will operate again. That may satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming – “sooner or later,” or, in other words, “too little and too late”. . . .

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.

Student Activity

Instructions to the Student: Read the three sources provided for this assignment. Then read the four questions below. Share your views about the questions and ask your teacher for any clarifications you feel you need. Then in a few brief sentences, answer each question. Use these notes to help you to take part in an all-class discussion about the case of  Youngstown Sheet & Tube Co. v. Sawyer.

1.    Justice Black thinks President Truman violated one of the Constitution’s key “checks” meant to limit the powers of each branch of the government. Explain which check he means and how he thinks the President violated it.

2.      Justice Vinson in his dissent says a national emergency gives the president the right to act on his own to meet that emergency. He refers to two parts of the Constitution – one establishing the President as “Commander in Chief,” and one saying the President must “take care that the laws be faithfully executed.” Why do you think he believes these give the President the right to act as he did in this case? 

3.     Do you think Justice Black deals with the points Justice Vinson makes in his dissent? Explain your answer.

4.     Do you think the Supreme Court’s majority opinion in this case was correct, or do you think the dissenting opinion made the better argument? Explain your answer.

Liberty, Metaphor, and Mechanism: "checks and balances" and the origins of modern constitutionalism. [1] David Wootton Professor of Intellectual History at Queen Mary, University of London

"So famous is the political theory of checks and balances, so well known to Americans, that he is a bold man who tries to say new things about it." Stanley Pargellis (1938) [2]

1. Mechanical Systems . My subject is a topic which has been almost invisible to historians of political theory, the history of the concept of "checks and balances". [3] The phrase is widely used in contemporary discussions of power and its regulation, and it is precisely because it has become so commonplace that historians and theorists have found it entirely unproblematic, treating it as if it was not a technical language (with all that that implies in the way of intellectual preconditions and hidden presuppositions) but a mere manner of expression. For Garry Wills, for example, it is, when used by the founding fathers, simply "an old concept borrowed from mixed government theory". [4] There is a marked contrast here with the idea of the separation of powers, whose history has been carefully and intelligently studied. [5]

To study the phrase, one must make some straightforward distinctions. First, there is the history of the phrase itself, first used by John Adams (1735-1826, the second President of the United States) in his Defense of the Constitutions of the United States in 1787 (but "check and balance", as we shall see, had been used by the radical Whig John Toland as early as 1701, and "balance or check" by the Civil War republican Marchamont Nedham in 1654). [6] Then there are the histories of the words out of which it is composed, for, I will argue, "check" and "balance" have separate histories in political theory. But the history of words and phrases is an empty thing if it is not a way of studying the history of concepts, and any study of the concept of checks and balances needs to include a wider family of words (such as "control", "clog", "counterpoise", and "equilibrium") which were often used to discuss the same or similar ideas. What all these words take for granted, I will maintain, is the idea that a political system can be usefully compared to a machine. Indeed the language I am concerned with here is entirely metaphorical. Nietzsche said that truth is "a mobile army of metaphors, metonyms, and anthropomorphisms," and the scientific revolution serves as a useful illustration of his claim: it is impossible to imagine what has been called the mechanization of the world picture without the metaphors of clock, machine, and automaton, without the metonymic (or perhaps rather synecdochic) distinction between primary and secondary qualities which lies at the heart of the mechanists' enterprise, and without the anthropomorphic conception of God as a clockmaker. [7] And this new mechanical world picture provided in its turn a series of metaphors for talking about political constitutions .

This paper will thus demonstrate the need for a more careful attention to language in the history of political theory. Despite the fact that the Cambridge School have always stressed the importance of linguistic change, only a rather narrow range of terms, such as "state" and "liberty", have been studied historically; part of my purpose here is to show that words that apparently have nothing to do with politics, words such as "system" and "machine", can be central to the history of political theorizing. [8] Indeed a study of the history of a phrase like "checks and balances" may give us a different understanding of its range of possible meanings. The Cambridge School have often claimed that the history of ideas can contribute something to normative moral and political philosophy. [9] The conclusion of my argument is that contemporary references to "checks and balances" miss the most interesting of the ideas that have been embodied in the phrase.

I began with a complaint about the history of political theory, so my first obligation is to show that historians of political theory have failed to think about checks and balances. One example can stand for many. Few texts in the history of political thought have been more widely influential than John Pocock's 1977 introduction to James Harrington's Political Works . There he argues that classical republican theory (a term of art including Ancient Romans such as Cicero, Renaissance theorists such as Machiavelli, and English Civil War republicans such as Harrington) had, since Polybius in the second century BCE, been preoccupied with the idea of how to achieve political stability through balancing monarchy, aristocracy, and democracy. This problem became central to English-language political theory a few weeks before the start of the Civil War, when Charles I issued His Majesty's Answer to the Nineteen Propositions of Parliament , which stated that "There being three kinds of government among men, absolute monarchy, aristocracy and democracy, and all these having their particular conveniences and inconveniences, the experience and wisdom of your ancestors hath so molded this out of a mixture of these as to give to this kingdom (as far as human prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the balance hangs even between the three estates…" [10] With these words Charles abandoned any claim to absolute rule and provoked what Pocock calls "a true revision of paradigms", a revision embodied in Philip Hunton's A Treatise of Monarchy (1643): "Hunton assumed that England was a mixed government, a balance of the independently subsisting forces of monarchy, aristocracy and democracy, just as described in the Answer to the Nineteen Propositions ; and he further pointed out that in a true balance, each power checked, but none controlled, the other two, with the consequence that no human authority was above the balance or was competent to command once it had broken down." Hunton, we are told, "had employed the republican vocabulary" and it would seem natural to assume that that vocabulary was one of balances, checks, controls. [11] It comes as something of a surprise to turn to Hunton and discover that Hunton uses none of these words, either in the Treatise or in its subsequent Vindication (1651). I think it is reasonable to complain that Pocock has read the concept of checks and balances back into the Treatise , where it is not (or is barely) to be found.

It is true that Hunton once addresses the idea of the balanced constitution, though in his own language:

in such a composed state [i.e. a monarchy mixed with aristocratic and democratic elements], if the monarch invade the power of the other two, or run in any course tending to the dissolving of the constituted frame, they ought to employ their power in this case to preserve the state from ruin; yea that is the very end and fundamental aim in constituting all mixed policies: not that they by crossing and jarring should hinder the public good; but that, if one exorbitate, the power of restraint and providing for the public safety should be in the rest: and the power is put into divers hands, that one should counterpoise and keep even the other: so that for such other estates, it is not only lawful to deny obedience and submission to illegal proceedings, as private men may, but it is their duty, and by the foundations of the government they are bound to prevent dissolution of the established frame. [12]

Restraint and counterpoise, one might argue, are terms strictly analogous to checks and balances. But restraint is a virtue as well as being a metaphor about limitations on freedom of action. Hunton's own summary of this passage, in the Vindication , is "My third argument for mixture was from its end, which was restraint from excess." [13] "Excess" is clearly a normative concept - indeed, in an Aristotelian world, where virtue is defined as a mean, "excess" is by definition a vice. Hunton has no interest in pursuing the concept of a balance beyond this passing remark because he is interested in authority and right, public good and private duty. To think seriously about checks and balances one has to start thinking about political systems in value-free terms, and to see them, indeed, as systems which can usefully be compared with mechanical systems.

It would be surprising indeed if Hunton was interested in doing this because the vocabulary he would have needed would have been as much mechanical as republican. In 1648 we find the first reference to the science of mechanics ; it is followed in 1662 by mechanism ; and in 1673 the word machine is first used to mean an apparatus for applying mechanical power - engine had been the English translation for the Latin machina until then. Thomas Hobbes, for example, described a watch as a small engine. John Evelyn, the diarist, is credited with being the first to introduce into English another word with a related meaning, but with a Greek origin, automaton (1645). [14] In all the early usages the standard example of a machine or automaton was a clock, and like clocks before them, machines and automata soon became powerful metaphors for thinking of God, thinking of God as a clockmaker and the universe as a giant clock: as early as 1587, in a translation of the leading French Protestant, Philippe de Mornay, we find the heart described as a divinely constructed clock. [15]

The idea of a system of checks and balances implies an idea of a constitution as a mechanical system, and that implies an interest in mechanism. The earliest reference to a "political machine" that I have been able to find is in John Dryden's edition of Plutarch's Lives (1683), in the life of Lycurgus: [16]

when he perceived that his laws had taken deep root in the minds of his countrymen, that custom had rendered them familiar and easy, that his commonwealth grew apace daily, and was able to go alone, he had such a calm joy and contentation of mind, as Plato somewhere tells us the Maker of the World had, when he had finished and set this great machine a moving, and found everything very good and exactly to answer his great Idea; so Lycurgus, taking an unspeakable pleasure in the contemplation of the greatness and beauty of his work, seeing every spring and particular of his new establishment in its due order and course, at last he conceived a vast thought to make it immortal too, and, as far as human forecast could reach, to deliver it down unchangeable to posterity. [17]

Here machine translates the Greek word cosmos .

Within a few years such usages of the word were common. Here the key figures are John Trenchard, his friend Walter Moyle, and their associate John Toland, the three of whom played the central role in refashioning the republican intellectual tradition to justify opposition to William III's efforts to build a strong state, capable of withstanding attack by the France of Louis XIV. These radicals insisted that a professional army (particularly if kept up during peace time) was (as republicans had often claimed) a dangerous threat to political liberty. In An Argument Showing That A Standing Army Is Inconsistent With A Free Government (1697) Trenchard and Moyle say that their objective is "to put in motion this machine of our government, and to make the springs and wheels of it act naturally and perform their function." [18] Soon afterwards, Trenchard, in his "incomparable preface" to his Short History of Standing Armies (1698) , argues that "a government is a mere piece of clockwork, and having such springs and wheels, must act after such a manner: and there the art is to constitute it so that it must move to the public advantage." The secret is "to make the interest of the governors and the governed the same", "and then our government will act mechanically, and a rogue will as naturally be hanged as a clock strike twelve when the hour has come." [19] Moyle, writing An Essay on the Lacedaemonian Government in the same year, maintained that the best constitution provided "a proper distribution of power into several branches, in the whole composing as it were one great machine, and each grand branch was a check upon the other; so that not one of them could exceed its just bounds." [20] It is not a coincidence that Toland, who may even have collaborated with Trenchard and Moyle in writing the Argument , uses the phrase "check and balance" soon after. [21] One of their critics was dismayed by the effectiveness of this new language: "Can you bear smiling at the simplicity of mankind, to find how many swallow your notions, because you talk so finely for liberty, a militia to defend it, and engineering in your studies?" [22] (This, by the way, is more than twenty years earlier than the OED's first recorded use of "engineering" as a noun.) [23]

In the light of my earlier reading of Hunton, you will expect me now to argue that this new mechanical language was linked to a rejection of moral categories in political analysis. And this is indeed the case. Trenchard, Moyle, and Toland, former Whigs, found themselves in alliance with former Tories, such as Harley, in attacking the new party of big government, the court Whigs. [24] They were well aware that those in power shared (at least in theory) many of their principles. And they repeatedly acknowledged that William, as king, was both a legitimate ruler and a man to be trusted - it was essential that their attacks on his policies should have no hint of Jacobitism. But their claim was that good men would eventually be replaced by bad men (it was only a short step, but one they hesitated to take, to claim that power tends to corrupt, and turns good men into bad), and that in the long run what counts is not the quality of the men or the rectitude of their intentions, but the nature of the political system within which they operate. As Trenchard and Moyle put it, "let us flatter our selves as much as we please, what happened yesterday will come to pass again, and the same causes will produce the like effects in all ages." [25] Moyle, writing to a friend, adopted a more learned language: "Thus you see, as a good author expresses it, eadem fabula semper in mundo agitur, mutatis duntaxat personis ; which agrees with what Thucydides says in his third book, eadem accidere, donec eadem hominum natura ." [26] The casuistical terms in which Hunton and his contemporaries had conducted their debates could thus be dismissed as irrelevant. Trenchard, writing years later as Cato, still dismissed the conventional preoccupation with virtue: "The experience of every age convinces us, that we must not judge of men by what they ought to do, but by what they will do." [27] The task of the political analyst was not to judge moral right and wrong, but to follow the chain of causes at work within a political system.

I find it easiest, as you will have noticed, to describe the new political theory by employing the word "system". Harrington had written of "the system of the government" and "a system of politics", but he seems to have had no immediate successors. [28] Samuel Butler, in 1729, was giving the word (which had previously meant little more than an aggregation or grouping) a tightened definition when he wrote "The body is a system or constitution: so is a tree: so is every machine." [29] Once the word was readily available in this new sense it was quickly re-employed in political theory: it appears a year later in the first definition of the modern idea of a constitution in its political sense, Bolingbroke's statement that "By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, … that compose the general system according to which the community hath agreed to be governed." [30] Indeed he uses it over and over again. The constitution is "a noble and wise system, the essential parts of which are so proportioned, and so intimately connected, that a change in one begets a change in the whole." King and people are "parts of the same system, intimately joined and co-operating together, acting and acted upon, limiting and limited, controlling and controlled by one another." [31] But for the pioneers of the new way of thinking in the final years of the seventeenth century "system" was a word that was too imprecise to serve their purposes. The preferred word to convey the idea of an interacting system was, as in the quotation from Butler, "machine". "Machine" was not a metaphorical term which stood in place of a readily available alternative; at first it was the only available term to convey the idea of complex interaction.

Even when the idea of a system was well-established, the reference to machines remained almost obligatory because the idea of a system remained entangled in the idea of a machine. Thus Adam Smith writes, in the History of Astronomy (c. 1749) (astronomy had played a key role in reshaping the word "system" because of its use in phrases such as "the Copernican system"), "Systems in many respects resemble machines. A machine is a little system, created to perform, as well as to connect together, in reality, those different movements and effects which the artist has occasion for. A system is an imaginary machine invented to connect together in the fancy those different movements and effects which are already in reality performed." [32] Trenchard and Moyle would have had no difficulty recognising the implicit claim that governments are machines in Hume's rhetorical question in "Of Refinement in the Arts" (1752): "Can we expect, that a government will be well modeled by a people, who know not how to make a spinning-wheel, or to employ a loom to advantage?" [33] It was still entirely natural for John Adams, writing in 1765, to compare political constitutions at length with the constitution of the body and with machines such as clocks ("a combination of weights, wheels, and levers, calculated for a certain use and end") before concluding "government is a frame, a scheme, a system, a combination of powers for a certain end, namely, - the good of the whole community." [34] Indeed Sir James Steuart's An Inquiry into the Principles of Political Oeconomy (1767) could, when discussing this topic at least, have been written at the end of the previous century:

It is of governments as of machines, the more they are simple, the more they are solid and lasting; the more they are artfully composed, the more they become useful; but the more apt they are to be out of order. The Lacedaemonian form may be compared to the wedge, the most solid and compact of all the mechanical powers. Those of modern states to watches, which are continually going wrong; sometimes the spring is found too weak, at other times too strong for the machine: and when the wheels are not made according to a determinate proportion, by the able hands of a Graham, or a Julien Le Roy, they do no tally well with one another; then the machine stops, and if it be forced, some part gives way; and the workman's hand becomes necessary to set it right. [35]

There would seem to be an obvious objection to this line of argument. Is not the concept of a political system, or something very like it, already present in Polybius? In the words of a mid-twentieth-century translation, Polybius held that Lycurgus, in reforming the constitution of Sparta, understood the perils of a simple constitution, and therefore:

Combined together all the excellencies and distinctive features of the best constitutions, that no part should become unduly predominate, and be perverted into its kindred vice; and that each power being checked by the others, no one part should turn the scale or decisively outbalance the others; but that by being accurately adjusted in exact equilibrium, the whole might remain long steady like a ship sailing close to the wind. [36]

There are two things that are disconcerting about this translation. In the first place, it brings together into the same sentence the words check and [out]balance. Here, though, it simply reflects the magnetic attraction of the modern phrase "checks and balances" - the early translations of Polybius that I have been able to consult do not use the word "check", but rather phrases such as "mutually acted upon by opposite powers" or "each separate power being still counteracted by the rest". Even more alarming is the phrase "like a ship sailing close to the wind." In the first place, Greek ships could not sail close to the wind, so this must be a mistranslation; in the second place a ship sailing close to the wind implies a complex balance of a number of different forces - wind, sails, ballast, rudder - so if Polybius thought in such terms his notion of equilibrium would imply some sort of complex machine, not the simplest form of a balance, that of two weights in a scale - the sort of balance that has been familiar for millennia.

In fact, Polybius thought only in terms of the simple balance. The passage about a ship remaining in equilibrium while in movement, which might seem to suggest otherwise, has provoked much debate and continues to puzzle scholars because it contains a word found nowhere else. [37] The best interpretation as far as the sense is concerned (I am not competent to comment on the technical problems presented by the Greek) is in a French translation of 1792, which assumes, quite properly, that Polybius is thinking of a galley: if only the rowers on the port side row the ship turns clockwise; if only those on the starboard side row it turns anti-clockwise; if both row together an equilibrium is established and it proceeds in a straight line. [38] In other words Polybius is still thinking of a simple balance between two equal forces, not of some complex balance between multiple forces - not of what we would call a "system", which needs to have several interacting parts. The standard modern translation takes Polybius to be talking about loading the cargo in a ship so it remains in trim as it travels along - again a balance of two equal forces. [39] Moreover Polybius assumed that the balancing of forces would be the result of deliberate action, not the unintended consequence of an interactive process. Theorists such as Trenchard and Moyle were interested in the idea that a political system might be constructed so that it would generate outcomes (such as the public good) that none of the participants had intended to achieve.

Thus to describe Polybius as having the idea of a political system is to read systems analysis (itself an aspect of mechanistic thinking) back into a pre-technological culture. When he was first taken up in English the balance was only one, and not necessarily the preferred, metaphor for the imposition of due limits. Here is His Majesty's Answer again: "… as long as the balance hangs even between the three states, and they run jointly on in their proper channel (begetting verdure and fertility in the meadows on both sides), and the overflowing of either on either side raise no deluge or inundation." [40] The mixing of metaphors here is testimony to just how little work the idea of the balance was capable of doing before the rise of mechanistic philosophy.

I have chosen a plainly anachronistic translation of Polybius because I want to stress that Polybius is not a fixed quantity, but was bound to be read differently at different times. What has become for modern commentators the key passage of Polybius's Histories was not always read - it survives only in a fragment, and was omitted from those editions which reproduced only the complete books. [41] The middle of the eighteenth century saw what has been called the "rediscovery" of Polybius, and I want to suggest that this was a rediscovery of this particular passage, and was linked to the intellectual revolution I am discussing. [42] Even when the passage was translated, its meaning was sometimes far from apparent - a translation of 1634 renders the passage incomprehensible by changing one letter, for instead of saying "Royalty should be restrained from arrogancy by fear of the people" it says, perhaps under the pressure of censorship, perhaps simply through carelessness, "Loyalty should be restrained." [43]

Our own preoccupation with Polybius as the source of the idea of the mixed constitution and of checks and balances is, in any case, somewhat misleading. Adams, in his Defense of the Constitutions of the United States , placed great emphasis on Polybius, and the author of His Majesty's Answer also appears to have had Polybius in mind, but for generations of politicians the idea of the balanced constitution would have been familiar, not from an obscure passage in Polybius, but from a far more widely read passage in Plutarch's life of Lycurgus. [44] The significance of this passage has been overlooked, perhaps because modern translations do not use the word balance. Here is the sixteenth-century translation of North:

In this change of the state, many things were altered by Lycurgus, but this chiefest alteration was, his law of the erection of a senate, which he made to have a regal power and equal authority with the kings in matters of weight and importance, and was (as Plato saith) to be the healthful counterpoise of the whole body of the Commonweal. The other state before was ever wavering, sometime inclining to tyranny, when the kings were too mighty; and sometime to confusion, when the people would usurp authority. Lycurgus therefore placed between the Kings and the people, a Council of Senators, which was as a strong beam, that held both these extremes in an even balance, and gave sure footing and ground to either part to make strong the state of the Commonweal. For the 28 Senators (which made the whole body of the Senate) took sometime the King's part, when it was needful to pull down the fury of the people: and contrariwise, they held sometimes with the people against the Kings, to bridle their tyrannical government. [45]

There is still only one balance here, not a series of checks and balances, but it is worth noting that there are close analogues here to Hunton's language of counterpoise, restraint, and foundation, so we can reasonably suspect that it is Plutarch not Polybius that Hunton had in mind.

I have paused over Plutarch's life of Lycurgus partly because Moyle, writing in his Essay on the Lacedaemonian Government about Harrington's scheme of government, said "How nearly this is drawn from Lycurgus's institution you may read with pleasure in his Life writ by Plutarch." [46] This is true to a far greater extent than modern commentators on Harrington have acknowledged. The agrarian; the ballot; rotation of office; the separation between proposing and resolving; the mixture of monarchy, aristocracy and democracy; the idea of a government so constituted that it is capable of surviving for ever: all were described by Plutarch and taken up by Harrington. It was ostensibly on the basis of Plutarch and Harrington (and perhaps also on the basis of a reading of Nedham) that Moyle developed an account of what we now call the separation of powers, an account which surely influenced both Bolingbroke, whose essays in The Craftsman (1730) followed soon after the first publication of Moyle's work (though written in 1698 it did not appear in print until 1727), and Montesquieu (who, like Moyle, writes of the distribution, not the distinction - Nedham's term - or separation of power(s) and who, like Moyle, uses a selective account of an existing constitution to describe the maximum amount of liberty possible within civil society). [47] For our purposes Moyle's essay of 1698, not Hunton's Treatise of 1643, represents the birth of a new language and a new paradigm: he writes of checks, of controls, of the balance of power (although perhaps not in its modern meaning), of machinery. That new paradigm owed a great deal to Harrington's conceptions of political architecture and political anatomy, but its vocabulary was only in part Harrington's. Harrington had written of checks (in the context of providing political supervision of military commanders), and of the law controlling the Lucchese (in the context of a refutation of Hobbes's views on liberty), but he had made no mention of machines, and when Harrington had written of "the balance" he meant the stable state created by an overbalance, not an equilibrium. The traditional idea of a balanced constitution he dismissed as a mere wrestling match between kings, lords, and commons, and in order to avoid the hated term "balance" when talking of constitutional provisions he adapted the term "libration" to a novel use. [48]

Harrington, as his description of the constitution of Oceana draws to a close, quotes Plutarch's account of how Lycurgus had admired his own work and aspired to make it permanent. For readers of Moyle's generation this passage evoked images of machines driven by springs; but Harrington still read it as North had read it, as an account of man imitating God in the construction of an order comparable to that of the heavens: "he conceived such a delight within him, as God is described by Plato to have done when he had finished the creation of the world, and saw his own orbs move below him: for in the art of man (being the imitation of nature, which is the art of God) there is nothing so like the first call of beautiful order out of chaos and confusion as the architecture of a well-ordered commonwealth." [49] It is this step from the classical art of political architecture to the modern science of political engineering - which Trenchard called "the art of political mechanism" - that is marked by the new language of checks and balances. [50] It is true that both Nedham and Harrington saw the frequent election of representatives as a key process in politics, which Nedham described as "revolution" and Harrington as "rotation", but the whole point of this movement, like the movement of the heavens was that it kept bringing the political system back to its original starting point, a conformity of interests between government and governed: which is why Harrington can mix astronomical and architectural metaphors in a single sentence. The new emphasis on mechanism, by contrast, made it possible for the first time to think about the political process in non-cyclical terms. For later theorists of constitutional machinery the importance of Polybius and Plutarch, of Nedham and Harrington was that they provided apparent precedents for what was in fact a new way of thinking.

Moyle, tracing the idea of the distribution of power back to Lycurgus, was effectively denying the modernity of the new political theory and the institutions it described. A much more subtle view is implicit in Montesquieu's Spirit of the Laws (1748). There Montesquieu writes of moderate governments as requiring the balancing of powers one against another. [51] But mere moderation provides no guarantee of constitutional liberty, which exists only where there is a proper separation of powers. Only in England had the separation of legislature, executive, and judiciary (in the English case the "judge" in criminal cases being the jury) come properly into existence, and thus a constitution in which the separate powers provided adequate checks upon each other, and political liberty is consequently guaranteed, was evidently a modern invention. [52] However Montesquieu's account of the English constitution was theoretical rather than historical. Nowhere does he give any indication that he grasped that both the division of powers he so admired and the mechanical language he employed to describe their relationship to each other was scarcely older than he was. (He was born in 1689.)

2. Checks and Balances . "Checks and balances" is a phrase now widely employed to describe due process in decision making, and has a more precise meaning in descriptions of political constitutions where power is used to check power, of which the American constitution is the paradigmatic example. Nedham had written of a "balance or check" in 1654; Toland had used the phrase "check and balance" in 1701; and Gouverneur Morris had implied a plural form in 1776, writing of "every check and balance", but the phrase we now use was first used early in 1787 by John Adams in the opening pages of his Defense of the Constitutions of the United States , a work which defended the constitutions of the states and of the continental congress, for it was published a few months before the Convention proposed a new constitution for the federal republic. [53] In that same year Noah Webster used the phrase "checks and balance"; and "balances and checks" was to appear in The Federalist that winter. Others quickly took up Adams's terminology: Jonathan Smith, for example, addressing the Massachusetts ratification convention, represented himself as "a plain man and get my living by the plough. I am not used to speaking in public, but I beg you[r] leave to say a few words to my brother ploughjoggers in this house." His few words were about "checks and balances." [54]

It is time now to ask some straightforward, even obvious, questions. What are checks? What are balances? What exactly is being checked or balanced? And why do we need both checks and balances? At first, when I began to puzzle over the history of this phrase, my assumption was that the balance was the balance-wheel of a clock, that a check might be an escapement mechanism, and that "checks and balances" was a metaphor drawn from clockwork. [55] But this is not the case, and the pre-history of the phrase proves peculiarly complex; my own efforts here are bound to require correction and modification.

Of the two terms, checks and balances, balance is the older, the one used (if I may so put it, for on this all the translators agree) by Polybius. [56] According to seventeenth-century mechanics, the balance was the first of the six simple forces - the others being the lever, the wedge, the screw, the wheel and the pulley. (Of these, the most commonly used as a political metaphor, after the balance, was the screw, as in the following quotation from "A Maryland Farmer", "The aristocracy, who move by system and design, and always under the colorable pretext of securing property, act, as has been frequently said, like the screw in mechanics, always gaining, holding fast what it gains, and never losing." [57] Harrington had compared his principle of rotation to the working of a screw or a vice. [58] ) Whatever advances may have been made in the theory of the balance in the seventeenth century, there was nothing new about balances as such.

It is the idea of a balance between two forces that interested those who read Polybius and Plutarch before the eighteenth century. Thus Contarini (1543), as presented in a translation of 1599, praises Venice as embodying the Polybian ideal: "This only city retaineth a princely sovereignty, a government of the nobility, and a popular authority, so that the forms of all seem to be equally balanced, as it were with a pair of weights." [59] After The King's Answer the idea of the balance seems to have ceased to be of any significance in English political debate until it was reintroduced by Trenchard and Moyle in An Argument Showing that a Standing Army is Inconsistent with a Free Government (October 1697). The term then runs throughout the political debates of the next few years. Of the texts of this period the one that was best known in later years was Jonathan Swift's A Discourse of the Contests and Dissentions between the Nobles and Commons in Athens and Rome (1701), if only because Swift was so frequently reprinted (he was quoted at length by John Adams in 1787, and had been paraphrased by Benjamin Lincoln in 1785). [60] Swift, who is writing a satire on contemporary politics under the guise of ancient history, opens with a discussion of the "balance of power", a phrase which first appears in English in 1579, in a translation of Guicciardini, and whose usage is said to have become common after the Treaty of Utrecht in 1713. [61] In fact it had already become commonplace during the standing army debate of 1697-1701, being used sometimes in the Harringtonian sense of an overbalance (as in Moyle's "from modern politics we have been taught the name of the balance of power, but it was ancient prudence taught us the thing"), but sometimes also in the modern sense of an equilibrium or near-equilibrium, as when an anonymous critic of Trenchard and Moyle writes of "keeping the balance of power in a due libration, turning it sometimes one way, and sometimes another, according to present emergencies". [62] The same idea of an equilibrium was commonplace during these years in discussions of "the balance of Europe". Here is Swift:

The true meaning of a balance of power, either without or within a state, is best conceived by considering what the nature of balance is. It supposes three things. First the part which is held, together with the hand that holds; and then the two scales, with whatever is weighed therein. Now consider several states in a neighborhood. In order to preserve peace between these states, it is necessary they should be formed into a balance, whereof one or more are to be directors, who are to divide the rest into equal scales, and upon occasions remove from one into the other, or else fall with their own weight upon the lightest. So in a state within itself, the balance must be held by a third hand, who is to deal the remaining power with utmost exactness into the several scales. Now it is not necessary that the power should be equally divided between these three; for the balance may be held by the weakest, who by his address and conduct, removing from either scale and adding of his own, may keep the scales duly poised. [63]

Two things are very noticeable about this passage - the first is the assumption that a balance must always be a balance between two forces, so that if there are three powers they must re-divide themselves into two; the second is the conviction that maintaining a balance requires skill, a conscious analysis of the forces at work. One thinks of Halifax's Character of a Trimmer (1682) - the art of politics consists in knowing when to change sides, to trim the ship of state in order to restore the balance. This way of thinking implicitly likens the constitutional tension between three different institutions (king, lords, commons) to the task of building a coalition of parties within a single chamber. As Montesquieu put it (sliding, as eighteenth-century commentators could not help but do, between the static notion of constitutional equilibrium, and the dynamic notion of coalition formation), the three powers of King, Lords, and Commons "should form an equilibrium or a stasis. But since, in the necessary course of events, they are obliged to act, they will be obliged to act in concert." [64] It was natural for John Adams, in his influential "Thoughts on Government" of 1776, to assume that to "hold the balance" was synonymous with to "mediate." [65] But it was also obvious that the struggle between two parties might easily degenerate into what Harrington had called a wrestling match. Usbek, in Montesquieu's Persian Letters (1721), maintains that "Monarchy is a state of tension, which always degenerates into despotism or republicanism. Power can never be divided equally between prince and people: it is too difficult to keep the balance. The power must necessarily decrease on one side and increase on the other, but usually the ruler is at an advantage, being in control of the armed forces." [66]

How to escape from this bipolar model, with its associated stress on compromise, craft, and cunning, and its evident risk of instability? Bolingbroke in The Craftsman (in a passage, published in 1730, which is sometimes said to be a source for Montesquieu's doctrine of the separation of powers) distinguished sharply between the dependency of different parts of the government and their independency. In doing so he is discussing checks and the balance, but he uses the word balance coupled with the verb "control": Moyle had followed Nedham in employing the noun "control" in a political context, using it as synonymous with checks.

The constitutional dependency, as I have called it for distinction's sake, consists in this, that the proceedings of each part of the government, when they come forth into action and affect the whole, are liable to be examined and controlled by the other parts. The independency pleaded for consists in this, that the resolutions of each part, which direct these proceedings, be taken independently and without any influence, direct or indirect, on the others. Without the first, each part would be at liberty to attempt destroying the balance by usurping or abusing power; but without the last there can be no balance at all. [67]

What was new about this was that it replaced the idea that there must in the end be only two forces in balance with the claim that the three forces must remain independent. A similar view is expressed by Blackstone in his Commentaries (1765), only he avoids the word "balance", with its suggestion of stasis. Like Bolingbroke, he starts with a mutual power of veto, and then moves on to the interaction of forces, which he deftly reinterprets as a dynamic process:

In the legislature, the people are a check upon the nobility, and the nobility a check upon the people… while the king is a check upon both. And this very executive power is again checked and kept within due bounds by the two houses… Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits… Like three distinct powers in mechanics, they [people, nobility, executive] jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time, in a direction partaking of each, and formed out of all: a direction which constitutes the true line of the liberty and happiness of the community

– it is appropriate to think, here, if not when reading Polybius, of a ship sailing close to the wind, or (to take the hypothesis of Edward Spelman, in a note to his 1743 translation of Polybius), of a ship which is being rowed and at the same time carried by both the wind and the tide, for we really do have more than two independent forces at work. [68]

Anyone who compares these two passages with the passage I earlier quoted from Swift must recognize that they are talking about different processes. Swift expects the resolutions of one part to influence at least one of the others, for otherwise it will be impossible to bring the scales into balance. Bolingbroke believes that if the different parts pay attention to each other they will necessarily become unbalanced, and Blackstone writes as if each could act independently of the others. A similar argument is made by John Adams in 1787. He maintains that any balance of two weights will be unstable (the whole point of a pair of scales is that the slightest alteration in the weights tips the balance) or tippy, and that three equal and independent weights are needed for stability. [69]

All this would be incomprehensible if the only notion of equilibrium that existed in the eighteenth century was that of a scale in balance. In fact eighteenth-century textbooks on mechanics dealt carefully with the idea of an equilibrium between three independent weights, and we have, for example, Adams's notes on lectures he attended which dealt with this topic. [70] Adams seems to have thought that a three-way balance was inherently more stable than a two-way balance: a mistake perhaps derived from the fact that the experimental apparatus employed in the schoolrooms to illustrate such a system was much less sensitive than a fulcrum balance, for it involved a pulley for each weight, so that movement would only take place when the friction of all the pulleys had been overcome.

There is a second issue here: need the weights be not only independent but also equal? Bernard Manin, who is one of the few people to have discussed political theories of balance with any care, believes that eighteenth-century theorists always believed that a balance required equal weights, and both Adams and his critics, when talking about the tripartite balance, write as if this were the case. [71] But it would be very strange if everyone made this mistake. We have already seen Swift insisting that "it is not necessary that the power should be equally divided" between the three forces, and the three-way balance would scarcely have been an improvement on the bipolar balance if it had involved the introduction of a new principle of equality. In fact eighteenth-century textbooks showed how to balance three unequal weights in an equal-arm three-way balance by adjusting the angles between the arms. [72]

It is easy to show that not all theorists of multiple balances presumed that the weights must be equal in balances involving three or more forces. This is apparent in Jean Louis de Lolme's Constitution of England (first published in French in 1771, and in English in 1775). [73] De Lolme argues that the legislature naturally outweighs the executive, with the resulting requirement that the weight of the legislature must be divided and dispersed, and the weight of the executive concentrated if a balance is to be achieved. Thus according to de Lolme one of the peculiarities of the English constitution is "its having thrown into one place the whole mass, if I may use the expression, of the executive power", which enables the royal authority to act as a counterpoise to the power of the people. Even so, the two powers are not as a result equal, for it is right that the power of the executive should be, in actuality if not appearance, the lesser of the two. But the legislative power, if it is not to be excessive, must be limited, and this can only be achieved by dividing it: "the same kind of impossibility is found to fix the legislative power when it is one, which Archimedes objected against his moving the earth" - a rare appeal, one might add, to the principle, if not of the lever, then at least of the fulcrum. Meanwhile, the people as a whole, as a body outside the constitutional system of powers, "at every instant have it in their power to strike the decisive blow which is to level everything", although they are only truly free when they have no need to exercise this unrestrained power. Thus for de Lolme the English constitution consists of a number of independent, separate, and unequal powers (including a judicial power consisting not only of an independent judiciary but also of juries who are judge of law as well as fact) whose "reciprocal actions and reactions produce the freedom of the constitution, which is no more than an equilibrium between the ruling powers of the state." [74] The key to establishing this equilibrium is weakening the legislature and strengthening the executive - the exact opposite of the policies advocated by Trenchard and Moyle.

So, too, for James Madison (who was to become President in 1809 and who had played the key role in the constitutional convention of 1787) and Alexander Hamilton (the leading advocate for the construction of a strong American state), the authors (with John Jay) of The Federalist (1787-8). Madison and Hamilton believed that since 1776 America had had plenty of experience of overpowerful legislatures). "It is against the enterprising ambition of [the legislature] that the people ought to indulge all their jealousy and exhaust all their 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." The result of this division and fortification is not a balance of equal powers, for the executive is still the "weaker department", and the legislative authority contains within itself a "weaker branch" and a "stronger branch." [75] It is these theorists of politics as the balancing of unequal forces who pioneered what is, I think, the most important and least recognized aspect of the theory of checks and balances, and we will return to them shortly, adducing further evidence that there is a close parallel between their arguments. So far we have seen that by the mid-eighteenth century there were two conflicting ways of thinking about a balance of powers, one (Swift's notion) which stressed the formation of alliances between two powers in order to balance a third, and the other (Bolingbroke's notion, derived in all probability from Moyle) which stressed the independency of the powers.

We turn now to the word check . No one seems to have asked when the word "check" is first used in a political context. It makes a couple of appearances in Nedham's A True State of the Case of the Commonwealth in 1654. It is probably as a result of Cromwell's reading of Nedham that we find him reported as saying to the army officers on 27 February 1657 that Parliament was in "need of a check or balancing power (meaning the House of Lords or a House so constituted)" to protect the rights of individuals, particularly in matters of religion. [76] But I have not noticed the word "check" anywhere else until the upsurge in radical publication which followed the lapse of the Licensing Act in 1695: we have already seen it used by Moyle in 1698 - indeed he uses it repeatedly - and it was used in the same year by Trenchard, by Moyle's friend Hammond, and by Shaftesbury and Toland, the likely authors of The Danger of Mercenary Parliaments , who write of "a check and curb". [77] In this last example we see it linked to what was presumably an earlier vocabulary, in which power was to be bridled (a word we have encountered in North's translation of Plutarch) and curbed. [78] One of the attractions of the word "check" was that it could be used both in a mechanical context and in the context of a human action of surveillance or supervision. We often find it paired with control, which is similarly ambiguous, as in the following passage of Moyle's: "You may observe in every government that when the executive power is transferred to the legislative, there is no control, nor can there be any check upon them; the people in such a case must suffer without redress, they have no resource; because they are oppressed by their own representatives." [79] But there are various types of check or control, and it is worth distinguishing them.

The obvious meaning of "check" was that of preventing an action, or exercising a veto: this was its original meaning in Nedham. In 1730, for example, we find James Pitt claiming that the three powers of the government "have a negative on each other" - the Commons being able to exercise a veto over the executive by refusing supply, or in Madison's phrase, employing "the engine of a money bill." [80] Montesquieu, writing in French, talks about each power being able to empêche , arrête , or veto the other, and from him there derived a lengthy tradition which assumed that the executive must be able to exercise a veto over the legislature (although in eighteenth-century English constitutional practice this veto had in fact virtually ceased to exist: Jean Louis de Lolme could find no case of the king exercising his veto after 1692). [81]

But to check might also mean, in Bolingbroke's language, to examine and control. According to the OED, the first use of the word responsibility is in Hamilton and Madison's Federalist (1787). [82] In fact the word can be traced back to 1766, and was in frequent use in late eighteenth-century English in the context of discussions of ministerial responsibility. [83] (It is one of the more remarkable examples of the power of metaphor that the nineteenth-century notion of moral responsibility has its origin in this notion of ministerial responsibility.) [84] But the idea, if not the word, goes back before then. The first example the OED gives for the use of responsible to mean "accountable" is in Prynne's Sovereign Power of Parliaments of 1643, where it is asserted that kings are responsible to their kingdoms or parliaments; and this was later extended into a clear doctrine of ministerial responsibility under another name. [85] Thus Trenchard writes in 1698, "The law has always been very tender of the person of the king, and therefore has disposed the executive part of the government in such proper channels, that whatsoever lesser excesses are committed, they are not imputed to him, but his ministers are accountable for them" (although he goes on to complain that in practice this principle of accountability is easily evaded). [86] I am not sure when accountability was first described as a check, but it may well have been during the debates on impeachment of 1697/8. Certainly it is in this sense that the philosopher and historian David Hume wrote (in 1752) of the "particular checks and controls provided by the constitution", checks which make it in the interest of bad men to act for the public good: he is discussing the problem of how a government is to control its administration. [87] For Blackstone too it is impeachment which serves as a check on the executive. So important might this idea of accountability seem that it was capable of swallowing up any other concept of checks and balances. According to the OED the first use of the word accountability was in The History of Vermont in 1794, in a reference to "mutual checks and balances, accountability and responsibility." [88]

In the eighteenth century, freedom of the press created a new method of holding those in power to account, by summoning them to the bar of public opinion, or, to use Bolingbroke's term, "the tribunal of public fame". [89] In general Anglophone political theory was very slow to recognize the significance of freedom of the press for British liberty. Number 15 of Cato's Letters , "Of Freedom of Speech", is perhaps the first sustained defense of free speech, describing it as "the great bulwark of liberty", but I know of no sophisticated analysis of its effects earlier than the one to be found in the Francophone de Lolme . De Lolme, a citizen of Geneva, was impressed by the way a free press can make three kingdoms into one small town. Indeed he maintains public debate in the press has all the advantages and none of the disadvantages of a popular assembly; de Lolme, a former disciple of Rousseau's, was eager to stress the ease with which direct democracy degenerates into tyranny. He is clear, however, that no tyranny can withstand a free press - and the original purpose of his book, first published in Holland for sale in France, was to undermine French absolutism by exploiting this very freedom. De Lolme fully recognized the power of the press as a "mighty political engine," capable of being a check in its own right. [90]

Then there is a third meaning of check, meaning to interrupt or delay. Here check is paired not with "control" but with "clog", a word which originally meant a hobble, and had come to mean any obstacle or brake. In 1698/9 there are repeated references to the opposition's desire to "clog the wheels of government." [91] In 1752 we find Thomas Pownall attacking the contemporary working of checks and balances in the British Constitution: "Thus it becomes the interest of the democratic part to be a constant clog and check upon the measures of the administering power, and to oppose themselves to every new exertion of its influence." [92] Paine, in Common Sense , chose to understand the theory of constitutional checks in this sense: "for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern; and though the others, or a part of them, may clog, or as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavors will be ineffectual, the first moving power will at last have its way, and what it wants in speed is supplied in time." [93] Speed, of course, might be required for good government, and in Massachusetts those who agreed with Paine that there should only be a single legislative chamber complained that senates "have formerly been a check or clog to business of consequence, requiring dispatch." [94]

American advocates of bicameralism replied that it was important for one legislative chamber to check another, and since, if both chambers represented the people, the purpose of such a check could not be to balance competing interests, it must be to delay hasty decisions. (Although one did not need to be an American to reach such conclusions - de Lolme had already defended bicameralism in similar terms.) [95] In South Carolina in 1784, for example, it was maintained that the case for two representative bodies was that "the division in the legislative power seems necessary to furnish a proper check to our too hasty proceedings." [96] Benjamin Franklin was arguing in this tradition when he defended the idea of two assemblies, saying it was "like a practice he had somewhere seen, of certain wagoners, who, when about to descend a steep hill with a heavy load, if they had four cattle, took off one pair from before, and chaining them to the hinder part of the wagon drove them up hill, while the pair before and the weight of the load, overbalancing the strength of those behind, drew them slowly and moderately down the hill." [97] There was indeed general agreement that some mechanism to ensure delay was needed so that, in Madison's phrase, it was the "cool and deliberate sense of the community" which prevailed. [98]

Both checks and balances thus prove to be much more complex notions that one might at first suspect; nor should we be surprised that the linking of the two together presents its own complexities. In Moyle's essay on the constitution of Sparta the word check is frequently used, but "balance" is never used in its Polybian or Plutarchan sense. In Montesquieu the two ideas are kept radically separate: balance is invoked in the context of a discussion of the mixed constitution of the Roman republic as described by Polybius; checks in the context of a discussion of the separation of powers as exemplified by England. [99] Indeed this, I believe, was the general pattern, and modern commentators have been led astray by the fact that it is Adams who first uses the phrase. Manin, for example, concludes that the idea of "checks and balances" develops out of the idea of a mixed or balanced constitution (advocated by Adams) and allows for the active influence of one branch of government on another; while the alternative is the idea of the separation of powers, which provides only for passive or negative "checks". [100] The fact that the idea of a check is here recognized as peculiarly belonging to one tradition, while "checks and balances" is supposed to derive from the other suggests confusion in the argument. In fact the idea of checks and balances implies the bringing together of two analytically and historically distinct traditions, that of the mixed or balanced constitution (a tradition in which the word "check" plays no part) and that of the separation of powers (a tradition which makes no mention of balances).

This argument is supported by the first occasion (as far as I know) on which "check" is used as a political term, in Nedham's True State of the Case of the Commonwealth (1654), when it is immediately counterposed to "balance". Nedham is formulating the first uncompromising argument for a separation of powers (made possible by the existence of an actual separation in the Cromwellian written constitution, the Instrument of Government), and complaining that the Rump Parliament's proposal for biennial Parliaments would have placed "the legislative and executive powers in the same persons… by which means in effect they become unaccountable for abuses in government… And how easily abuses might have been justified in a parliamentary way, is apparent enough; seeing an opportunity was given in that bill, to the next or any succeeding Parliament (no manner of balance or check being reserved upon them) by claiming an absolute authority to be in themselves, for ever to have continued the power (if they pleased) in their own hands…" At first sight it might seem as if the words "balance" and "check" are here being used as equivalent terms: and indeed when Cromwell linked the terms together in 1657 they seem to have been assumed to be equivalents. But they may equally have been meant as alternatives. By the word "balance" it may be that Nedham meant to invoke the powers of the monarch and Lords within the mixed constitution (which included the monarch's power to dissolve Parliament); by the word "check" he may have meant to invoke the power of the Protector under the Instrument of Government to veto unconstitutional legislation. If so the word "check" was being put to use to explain how power would be limited within a constitution where powers were separated. [101]

Nevertheless, it was tempting to see the English constitution as embodying both a separation and a balancing of powers, and it was easy to slip into using "check" and "balance" as synonyms. As Toland put it, "All the world knows that England is under a free government, whose supreme legislative power is lodged in the King, Lords, and Commons, each of which have their peculiar privileges and prerogatives; no law can pass without their common authority or consent; and they are a mutual check and balance on one another's oversights or encroachments." [102] (This led directly to an appeal to the authority of Polybius.) We have seen Bolingbroke also trying to bring together the ideas (but not the language) of both traditions by stressing the constitutional dependency and independency of both branches of government: first published in The Craftsman in 1730, his argument was republished in 1743 in Remarks on the History of England . In the same year, in Spelman's preface to his translation of Polybius's fragment on the balanced constitution, check and balance once again occur in close proximity, as if virtual equivalents. [103]

But why did Toland's phrase not catch on, as Adams's did? In 1752 Thomas Pownall attacked those "that talk of balance and counter-balance, of one power being constitutionally a check upon another; and that it is constitutionally the duty of these to pull different ways, even when there is no real matter of difference, yet to preserve the equilibrium of power." [104] Now this is not the old doctrine of the balanced constitution which is under attack, for that had always insisted that the precondition for equilibrium was coalition-making and trimming; what is being attacked here is the new Bolingbrokean doctrine, later to be Adams's doctrine, that the three powers can pull in separate, independent directions and yet establish an equilibrium, and it is this new doctrine which brings the idea of the balanced constitution close enough to the idea of the separation of powers for checks to be routinely identified with balances. Blackstone, we have seen, moves seamlessly from a discussion of checks (first the independent capacity of Commons, Lords, and King to veto legislation; and then the capacity of Parliament to hold the king's agents to account) to a discussion of a triangle of forces. But in Blackstone's account the three forces result in movement not equilibrium. This way of thinking did not lead naturally to a language of checks and balances, or even of "checks and balance," the phrase Noah Webster uses in 1787. In order to understand the power of the phrase we will need to look more closely at Adams's Defense .

We can now see that Adams's phrase involves a further puzzle, beyond the bringing together of two words that belong to very different intellectual traditions: the use of balances in the plural. For most previous writers there had been one balance of forces (as in Polybius and Swift), which trims the ship of state and sustains the mixed constitution, and several checks. What (other than syntactic parallelism) invited the reference to balances in the plural? It seems clear the shift was thought to be particularly appropriate in the context of limits on the power of the legislature: The Federalist refers specifically to "legislative balances and checks," in a list of a series of principles to be adopted in any well-constructed constitution, and an exactly equivalent phrase had been used by Gouverneur Morris in 1776: "The authority of magistrates is taken from that mass of power which in rude societies and unbalanced democracies is wielded by the majority. Every separation of the executive and judicial authority from the legislature is a diminution of political and increase of civil liberty. Every check and balance of that legislature has a like effect." [105]

Later Adams was to identify eight balances in the constitution of 1787: between the states and the federal government; between the House of Representatives and the Senate; between the executive and the legislature; between the judiciary and all the other powers; between the senate and the president in appointments to offices and treaties; between the people and their representatives; between the legislatures of the states and the senators selected by them; between the people and the electoral college which selected a President. Here some of these balances are clearly what would once have been called checks (between executive, legislature, and judiciary). The result (for Adams was no admirer of the new constitution) was "all this complication of machinery, all these wheels within wheels, these imperia within imperiis ." [106] I have reproduced these eight in an order of my own, because the first five seem to me a logical consequence of a mixed constitution and a separation of powers within a federal system. But the last three are all cases of a balance between electors and elected, and this involves an idea of balance unknown to Polybius, Swift, and Montesquieu. It is to this idea of balance, central to any account of legislative balances and checks (including that which appears in The Federalist ), that I now turn.

There is a simple sense in which at every election the electorate hold their representatives to account, and replace those who have failed to give satisfaction. This fundamental check is, we might say, the essence of the liberty to be found in representative government. Peers, Bolingbroke said, are accountable to God, but MPs to their constituents. [107] According to the anti-Federalist author who called himself Centinel, in England "the only operative and efficient check upon the conduct of administration, is the sense of the people at large." [108] But the relationship between the electorate and their representatives is a complex one, and I want to pause over two texts that made a serious effort to analyze it. The first is Edward Spelman's short but incisive introduction to his translation of Polybius on balanced government. Spelman's text was twice reprinted in English (the last edition being known to John Adams, who quotes at length from Spelman's translation in the Defense ), and later translated into French for publication during the Revolution. [109] I have already suggested that it was one of the few works that linked check and balance together as equivalents, and it may have played an important part in developing a convenient language for the notion that liberty is primarily established by power restraining power. It is also the first unambiguous defense of party in English, the consensus until then having been that, since there was a single common interest, parties are in principle unnecessary, and that where there are two parties there must be at least one faction. [110] Spelman, by contrast, argues that "in all free governments there ever were and ever will be parties," and that party conflict is not an effect but a precondition of liberty. The cities of ancient Greece were divided into supporters of aristocracy and democracy, but "it was not the existence of the two parties I have mentioned that destroyed the liberties of any of those cities, but the occasional extinction of one of them by the superiority the other had gained over it. And if ever we should be so unhappy as to have the balance between the three orders destroyed; and that any one of the three should utterly extinguish the other two, the name of a party would, from that moment, be unknown in England, and we should unanimously agree in being slaves to the conqueror."

Party thus becomes a crucial mechanism for checking the power of government: "whatever may be the success of the opposer, the public reaps great benefit from the opposition; since this keeps ministers upon their guard, and, often, prevents them from pursuing bold measures which an uncontrolled power might, otherwise, tempt them to engage in. They must act with caution, as well as fidelity, when they consider the whole nation is attentive to every step they take, and that the errors they may commit will not only be exposed but aggravated." But Spelman also provides a subtle account of party, distinguishing sharply between the motives of a party's supporters, who want to see certain policies adopted, and its leaders, who want power. The thirst for power provides the leaders with a stronger incentive than any disinterested concern for the public good, and opposition provides a training ground for future rulers. There thus exists an inherent tension between a party's leaders and its followers, for the leaders have an incentive to sacrifice their principles to attain power, while the followers, who will never be rulers, have an interest in seeing the powers of government restrained. A simple confirmation of this theory, in Spelman's view, is the complete failure of the political elite to repeal the Septennial Act and institute annual elections: although the whole nation would benefit from such a measure, politicians as a class have an interest in limiting the electorate's ability to control their actions. [111] A similar account appears in de Lolme's Constitution of England , for de Lolme argues that politicians rely on popular support to give them access to power, but as they acquire power and status, as they are promoted, for example, from the Commons to the Lords, the people cease to trust them, and become convinced that their interests are no longer at one with those of their rank-and-file supporters. [112]

In 1787 the proposed federal constitution for the United States necessarily multiplied both checks and balances, for it established a new constitutional tension, that between federal and state powers. Adams's new phrase immediately became the language of the hour. But well before then a new notion of balance had come into existence to supplement the Polybian and Plutarchan balance between monarchical, aristocratic, and democratic institutions. This was the notion of a natural balancing mechanism at work first of all between parties, and then between the governing elite and those they represent. This new conception of representative government made it easy to recognize that there were several balances at work, as well as several checks. Neither Spelman nor de Lolme coined the phrase "checks and balances", but this is a mere accident of history, for the phrase accords well with what they wanted to say, and their notion of a balance between electors and elected is central to Adams's list of the different balances at work in the American constitution.

3. Automatic Machinery . So far I have argued that there is a radical discontinuity between the Polybian or Plutarchan notion of the balance and the new mechanical language of controls, clogs, checks, and of counterpoise, balance, equilibrium that establishes itself after 1697. Second, I have argued that there are several types of check and more than one type of balance, and that it is important to distinguish between them. Thirdly, I have argued that where checks were plural from the beginning, the balance was singular and only became plural with a new account of the role of parties and political leaders in representative government and with the birth of federalism. At this point you might think the idea of checks and balances has been pretty thoroughly explored; this then is the time to turn to that aspect of the new mechanical thinking which seems to me to be missing from modern usages of the language of checks and balances.

Let us start with the translation of Plutarch on the balance which we find in the Dryden edition: "For the state, which before had no firm basis to stand upon, but leaned one while towards an absolute monarchy (when the Kings had the upper hand) and another while towards a pure democracy (when the people had the better of it), found in this establishment of the Senate a counterpoise, which always kept things in a just equilibrium. For the Twenty Eight always adhered to the weaker side, and put themselves like a weight into the lighter scale, until they had reduced the other to a balance." [113] If we take Dryden's translator to be describing, not the decisions of politicians, but the working of a machine, then what we have here is an automatic mechanism, where a feedback loop enables the machine to regulate itself. What is involved here is not a static but a dynamic equilibrium: first the balance tips slightly one way, then the other, but each time it is brought back towards the horizontal. Where, before the establishment of the Senate, it see-sawed wildly, after its establishment it oscillates gently, always close to the horizontal.

Perhaps I am reading too much into this brief passage, for the idea of a self-stabilizing system was not a familiar one in the late-seventeenth century. In 1721 Thomas Gordon could see that the precondition for "control and counterpoise" was "a perpetual struggle: But by this struggle liberty is preserved, as water is kept sweet by motion." [114] The mixing of metaphors here, as in The King's Answer , shows mechanical thinking pressing at its limits. Gordon, after all, could not use the example of a self-stabilizing system with which we are most familiar, the market, where there is constant movement and change, but where competition works to match supply to demand and to bring profits towards an average rate. Nor would he have been familiar with any self-stabilizing machines. He did not, for example, have the benefit of central heating. Here the temperature in the house oscillates around a norm established by a thermostat: when it falls significantly the furnace is switched on; when it rises the furnace is switched off.

In the second half of the eighteenth century there was, for the first time, considerable interest in self-stabilizing systems, and it was soon claimed that under certain conditions - a separation between legislature, executive, and judiciary; a bicameral legislature; a unified executive; juries judge of law as well as fact; regular elections and a free press - representative government had a self-stabilizing character, where excess in any direction would tend to correct itself automatically. Societies with representative government appear to be in a constant state of agitation, yet we believe them to be peculiarly resilient. Like a tree in a storm, the political fabric bends, but it does not break. [115] We all unthinkingly rely on this idea that certain mechanisms enable the political system to correct its own mistakes when we maintain that an independent judiciary and jury trials are guarantees of liberty, or when we say that it is essential to the democratic process that there should be effective opposition, or when we take it for granted that we are unlikely to live through a violent revolution in England or America. This self-stabilizing system was first identified as functioning within English politics, and then deliberately constructed in the American constitution.

This revolution is of fundamental importance, for if we feel secure in the enjoyment of our liberties it is because we believe that the political system is in some way or other self-stabilizing, that given time the consequences of bad decisions will be mitigated not exacerbated. There are a number of reasons why this revolution has remained invisible. It was not formulated in a "classic" text of political theory. Indeed the ideas involved still remain somewhat unfamiliar and inchoate, so that we have little idea of under what circumstances and to what extent they are true - could one, for example, imagine a Nazi party coming to power within a well-designed constitution, and if not why not? Moreover, to discuss them in an eighteenth-century context it is necessary to talk about ideas of equilibrium in mechanics, a subject of little interest except to historians of science. Above all, the new theory of politics as self-stabilizing was masked by its superficial similarity to the far older theory of Polybius and Plutarch. The classical formulations of the idea of a self-stabilizing system, however, were designed to describe political systems which had the capacity to evolve into either monarchy, aristocracy, or democracy, but in fact stabilized in an in-between condition. What made this equilibrium possible was not just an arrangement of political institutions, but also a set of extra-institutional powers, or what one eighteenth-century commentator called "weight in the community" [116] - even if Polybius did not make this explicit, any eighteenth-century theorist familiar with Harrington's Oceana (1656) would have read this back into the text. [117] Thus Trenchard and Moyle wrote that "this balance [the constitution of England] can never be preserved but by a union of the natural and artificial strength of the kingdom… or otherwise the government is violent and against nature." [118] The new theory, by contrast, assumed that an overwhelming preponderance of power lay with a relatively undifferentiated "people", but that, despite there being no equilibrium in the social distribution of power, a self-stabilizing political system could exist.

Precisely because it involved a rejection of the traditional idea of a mixed government, the only system for which the claim that it was self-stabilizing had previously been made, many contemporaries found the new theory incomprehensible, implausible, or paradoxical. It relied, they recognized, on the idea of checks on power, it claimed that the checks involved were not simply "parchment barriers," but as far as they could see the checks were after all only "checks on paper," that is to say they relied purely on institutional mechanisms. [119] Their puzzlement and incomprehension continues to interfere with our ability to understand the intellectual revolution that had taken place.

Let us go back to the mechanical metaphor. The power of this depends partly on the quality of the clockwork mechanism one has in mind. The heart, which de Mornay likened to a clock constructed by God, does not beat steadily, but sometimes races, and for John Donne in the early seventeenth century clockwork was a symbol of unreliability, to be compared unfavorably with the genuinely regular movement of the sun through the heavens. René Descartes (1596-1650) obviously represents a key moment of transition, for in arguing that animals were mere machines he not only deprived animals of intelligence; he also attributed remarkable capacities to mere machines. It took time for men to construct in their minds the idea of a perfect mechanism, of what Trenchard, at the end of an essay on the mechanical philosophy, described as "a watch which will go for a thousand years" without winding or mending. [120] First Arnold Geulincx (1624-1669) and then Gottfried Leibniz (1646-1716) took the idea of mechanical perfection even further when they claimed that the mental world and the physical world correspond only because both are automata which have been perfectly synchronized, two clocks beating as one, unfailingly keeping time. [121]

This theoretical concept of the perfect mechanism takes form at roughly the same time as a quite different metaphor which contributed equally to the scientific revolution, that of the law of nature. The idea of a law as the expression of uniformity and regularity also involved the mental construction of a new species of perfection. Robert Boyle is an important pioneer in the use of both metaphors for regularity, that of the machine and that of the law, in a world where neither machines nor laws actually performed predictably. It is worth remembering that regular itself is a dead metaphor, derived from the term for a monastic rule; de Quincey in 1722 appears to have been the first to have used it to mean constant and uniform, in opposition to irregular - to use it in the sense we now take for granted. [122]

In order to be accurate, clocks have to be designed to continue marking regular intervals of time even as the arc of the pendulum diminishes, or the spring unwinds. All good clocks are in that sense self-regulating, and the history of clockwork is a history of regulatory mechanisms such as the verge-and-foliot escapement and the fusee. But a clock cannot tell when it has gone wrong and correct itself. Clocks lack feedback mechanisms, and to think of the universe as clockwork is to invite the notion that God may make occasional adjustments, as Newton believed He did to the orbits of the planets. Harrington insisted that a constitution, if constructed according to the right principles, could continue for ever, a self-regenerating system, but the claim explicitly involved a comparison between the political and the divine architects.

However a century after what we might call the mechanical revolution, a second, much less well-understood revolution took place, a revolution which saw the invention of self-regulating or self-governing or self-stabilizing machines. A simple example is the fan-tail windmill, where the fan-tail points the windmill into the wind, and constantly adjusts the direction in which the windmill points as the wind changes direction. The fantail is an eighteenth-century English invention - one apparently never adopted in France, where millers preferred to steer their windmills into the wind, not leave them to their own devices. It is on the basis of contemporary windmill technology that James Watt invented in 1788 the most famous self-regulating mechanism of the industrial revolution, the centrifugal speed governor for steam engines. Around the same time self-regulating mechanisms that had long been known were finding new uses - the thermostat, for example, and the ball-cock valve. All such machines involve - though the term itself is a twentieth-century one - some sort of feedback mechanism. [123]

At the same time, and almost ahead of the technological revolution, what we might call mind machines (remember Adam Smith describes theoretical systems as "imaginary machines" ) are being invented (again in the English-speaking world) which have self-regulating qualities: Hume invents the modern theory of the balance of trade in 1750, and Smith formulates what we now call the market mechanism (he does not use the term "mechanism" himself, but he would have acknowledged that the market was an imaginary machine) in The Wealth of Nations (1776). The whole point of the market mechanism is not that it is a machine, but that it is self-regulating or self-stabilizing, that it is a feedback system. Modern economics, as much as modern natural science, is thus dependent on a new understanding of the possibilities of mechanical systems, for even imaginary machines, if they are to be seen to work, must abide by recognizable mechanical principles. Even natural science needed the concept of self-regulation: Shaftesbury, as early as 1709, describes the mechanical philosophy as relying on "some exquisite system of self-governed matter," and I take it self-governed here means in effect self-regulating. [124]

It is worth noting that the process described by Spelman and de Lolme, the new balance between politicians and the public, is one of constant fluctuation around an equilibrium: government provokes opposition, opposition moves into government, and government provokes opposition. The process is never at rest, but is constantly self-stabilizing, just like the market or the fan-tail windmill. It implies, in fact, the idea of dynamic rather than static equilibrium, for what is at work is a feedback mechanism. Indeed any careful formulation of the claim that the people control their representatives through elections involves an appeal to a feedback mechanism. It is also worth stressing that Nedham and Harrington, who seem in so many respects to be the founders of the modern republican tradition, are systematically opposed to feedback mechanisms. They want a wholesale rotation or revolution in elected representatives at every election, rather than seeing elections as an opportunity to assess the performance of the people's representatives. [125] And they want political discussions to take place in secret, as in Venice, not in public. [126] Their assumption is that any passage of time represents an opportunity for corruption, while for later theorists time provides scope for correcting mistakes and adjusting to developments.

We can see the new, contrasting conception best in a passage from de Lolme:

As the representatives of the people will naturally be selected from among those citizens who are most favored by fortune, and will consequently have much to preserve, they will, even in the midst of quiet times, keep a watchful eye on the motions of power. As the advantages they possess will naturally create a kind of rivalship between them and those who govern, the jealousy which they will conceive against the latter will give them an exquisite degree of sensibility on every increase of their authority. Like those delicate instruments which discover the operations of nature while they are yet imperceptible to our senses, they will warn the people of those things which of themselves they never see but when it is too late; and their greater proportional share, whether of real riches or of those which lie in the opinions of men, will make them, if I may so express myself, the barometers that will discover, in its first beginning, every tendency to a change in the constitution. [127]

The representatives thus serve as a thermostat, enflaming or damping down public opinion depending on the presence or absence of a threat to liberty and property. Again, the process involves constant movement, as representatives compete simultaneously for power and public support, but as long as the circuit of election, representation, sensitivity, publicity, and new elections is unbroken, the mechanism to check power will continue to function. De Lolme, we have seen, likens the representatives to barometers not thermostats, for like barometers they act on men's minds. But while a barometer changes one's behavior, encouraging one to set to sea or carry an umbrella, one's resulting behavior does not in itself affect the weather. In politics, by contrast, the acute sensitivity of the elected representatives actually serves to change the political situation, as a result of the information being fed back to the public, in the same way that a thermostat serves to change the temperature in the room by supplying information to the furnace. What de Lolme is describing is a self-regulating system, and it is because his understanding of politics reaches this level of sophistication that we find him in later editions of his book criticizing Adam Smith's view that a standing army is not a threat to liberty if the sovereign is the supreme commander and the social elite supply the officer caste: "The author we are quoting has deemed a government to be a simpler machine, and an army a simpler instrument, that they in reality are." It is only when we see that de Lolme's understands England's constitutional machinery to be self-stabilizing that we can understand just how far from simple he thinks it is. We can also recognize why he was in a good position to identify and admire Smith's "great abilities." [128]

It was the need to find checks and balances with which to control representative democracy which most concerned the framers of the American Constitution. When Adams was asked by the state of Massachusetts to preside over a state constituent convention in 1820 (a convention called to revise the constitution of 1780, which Adams had drafted single-handed), he was praised for "demonstrating to the world, in his defense of the constitutions of the several United States, the contested principle, since admitted as an axiom, that checks and balances in legislative power are essential to true liberty." [129] But the great political work which sought to clarify and formulate the new understanding of politics which came to be embodied in the phrase "checks and balances," and draw from it a new design for the machinery of politics, was not Adams's Defense but Hamilton and Madison's Federalist , and it is only by putting that work in the sort of context I have constructed here that we can hope to measure its originality and its success. Outside America The Federalist remains largely unread - Isaiah Berlin, for example, who sometimes gave the impression of having read everything worth reading, never bothered to read it. [130] But unread too are the key texts in the development of the new theories of checks and balances, the texts of Nedham, Moyle, Trenchard, Gordon, Bolingbroke, Blackstone, Spelman, and de Lolme; instead The Federalist is read in the context of Hume (who had, it is true, been the first to recognize that an increase in scale could itself serve as a check upon the democratic element in the constitution). Hume pioneered the idea of self-regulating systems in economics but not in politics. [131] Indeed he felt sure that in the long run the British constitution would fail to correct its own faults and would dissolve into tyranny or democracy.

In Federalist 50 Madison (for those unfamiliar with the text I should explain that we know who wrote each of the essays which appeared under the by-line of Publius) rejects the idea that the working of the constitution can be supervised by some external body. He then begins no. 51 with this question:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down by 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. Without presuming to undertake a full development of this important idea I will hazard a few general observations… 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 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.

Here the conviction, so clearly formulated in Cato's Letters , that "whilst men are men, ambition, avarice, and vanity… will govern their actions" has been turned from a psychological principle into the fundamental principle of the constitution. [132]

Indeed in Cato's Letters , a work that Madison must certainly have known, Trenchard had momentarily formulated this general constitutional principle himself. Taking as his premise that "there has always been such a constant and certain fund of corruption and malignity in human nature, that it has been rare to find that man, whose views and happiness did not center in the gratification of his appetites", Trenchard concluded that experience had shown there was only one type of free government that could survive: one where

the power and sovereignty of magistrates in free countries was so qualified, and so divided into different channels, and committed to the discretion of so many different men, with different interests and views, that the majority of them could seldom or never find their account in betraying their trust in fundamental instances. Their emulation, envy, fear, or interest, always made them spies and checks upon one another… The only secret therefore in forming a free government is to make the interests of the governors and the governed the same, as far as human policy can contrive. Liberty cannot be preserved any other way.

But Trenchard expected the conflict between political leaders and the institutions with which they identified to be far more ruthless, far less successfully channeled into a harmless jockeying for position, than Madison did. "Disgrace, torture, and death", he tells us, should be "the punishment of treachery and corruption." [133] For hanging, drawing, and quartering, Madison substituted ambition and place-seeking.

Bernard Manin has correctly said that the system of internal controls which Madison is describing can properly be termed a self-enforcing equilibrium. [134] One might then say - for it is the same idea expressed in different language - that the constitution is intended to be a self-regulating machine. We have seen that this was already de Lolme's idea, and that he had elaborated this idea most clearly in his account of "the primary control," the relationship between the government and the people.

We do not know for sure that Madison had read de Lolme. It seems highly unlikely that he had not read an author whom Hamilton admired and whose book Adams (who shared de Lolme's preoccupation with the British constitution) had described as "the best defense of the political balance of three powers that ever was written". [135] Adams's enthusiasm rather blinded him to the fact that de Lolme was not interested in a balance of monarchy, aristocracy, and democracy (Adams's primary concern), but rather in a balance of executive, legislative, and judiciary and, in order to achieve this, in legislative balances and checks. In Federalist 70 Hamilton, who wanted a strong and unified executive, stated that he and de Lolme thought as one on the question of executive power, and made his own the judgement of Junius, that de Lolme was "deep, solid, and ingenious." [136] I rather suspect that Madison had read de Lolme and read him with care, for every step of Madison's argument in No. 51 is foreshadowed in de Lolme.

No quotation from Madison is more famous than the statement that "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." De Lolme had made a similar argument: in a world where men "had neither any ambition, nor any other private passions," then direct democracy would be practical, but "in such a society, and among such beings, there would be no occasion for any government." [137] And indeed this whole chapter (book 2, chapter 5) on the evils of direct democracy might be said to illustrate Madison's astonishing claim - the decisive attack on the notion that it is executives not legislatures that need to be checked - that "Had every Athenian citizen been a Socrates, every Athenian citizen would still have been a mob." [138] We have seen Madison arguing that every attack must be met with an equivalent defense, that ambition must counteract ambition. De Lolme's response to the excessive concentration of power is the same: the people must employ "for their defense the same means by which their adversaries carry on their attack… using the same weapons as they do, the same order, the same kind of discipline… the arts and ambitious activity of those who govern will now be encountered by the vivacity and perseverance of opponents actuated by the love of glory." [139] Underlying the principle of ambition counteracting ambition is the conviction that there can be no disinterested exercise of power, and that mere rules and regulations can never be effective checks. As de Lolme says, "those who are in a condition to control it [power] from that very circumstance become its defenders." Thus "the people are necessarily betrayed by those in whom they trust." [140] The only remedy to an excess of power is therefore to turn power against power, ambition against ambition. De Lolme was in fact the first theorist of legislative balances and checks, of the measures required to control an overwhelmingly powerful legislature. [141] No reading could have been more apposite for the authors of the Federalist , particularly as de Lolme had no interest in what one might term the antiquated elements of the British constitution, such as an hereditary aristocracy, a limited franchise, or an executive veto, but was interested only in those elements which could be shown to be superior to the democracy of Rousseau's Social Contract , which, along with classical republicanism, is as much de Lolme's subject as is the English political system.

Perhaps Madison had also read or reread Spelman just before writing Federalist 51, for we catch an echo of Spelman's argument that "it was not the existence of the two parties I have mentioned, that destroyed the liberties of any of those cities, but the occasional extinction of one of them, by the superiority the other had gained over it. And if ever we should be so unhappy as to have the balance between the three orders destroyed, and that any one of the three should utterly extinguish the other two, the name of a party would, from that moment, be unknown in England, and we should unanimously agree in being slaves to the conqueror" in Madison's statement, towards the end of Federalist 50, that "an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty." [142] But, whether or not Madison was consciously aware of his predecessors he shared with them a common purpose: the construction of a mental machine, a political system in which threats to liberty would be automatically counterbalanced, in which "a kind of rivalship" would pit ambition against ambition, with the unintended consequence that liberty would be secured.

4. Elective Despotism . In this paper I have traced the origins of the idea of checks and balances. I hope I have shown that, far from being an idea so straightforward that it has no history, it in fact has a double origin. On the one hand, as Noah Webster's "checks and balance," it is a complex amalgam of two theories which, until the middle years of the eighteenth century, were assumed to be incompatible, the theory of mixed government and the theory of the separation of powers. Here what made it possible to bring checks and balances together was a new understanding of the possibility of an equilibrium of independent (and also unequal) forces, so that the powers within a mixed government could be thought of as always separate rather than as being obliged eventually to act in concert. The importance of this theory (born of opposition to Walpole) was that it legitimized opposition to the government, and rejected the traditional quest for consensus. On the other, as Gouverneur Morris's "every legislative check and balance," it derives from the view that in a representative democracy the greatest danger is that the legislature will acquire the defects of a popular assembly, and that if it does the executive and the judiciary may prove incapable of checking its actions. The legislature had therefore to be balanced as well as checked: by elections, by political opposition or factional division, by public opinion, by a second chamber, by a strengthened executive. The importance of this theory (born both of a recognition that power was now concentrated in the House of Commons, and of a critique of Rousseau and ancient republicanism) was that it identified and addressed the possibility of a "tyranny of the majority". [143]

Thus checks and balances came to be linked by two quite different routes. In addition the checks or balances (for once the two were coupled together the distinction between them became increasingly difficult to sustain) that were understood to be at work changed radically over time, as the veto was supplemented by the idea of accountability, and as the electorate, the political party, and the press came to be recognized as having a crucial part to play in preventing the abuse of power. By coining the phrase "checks and balances" Adams thus made it possible to link together three distinct traditions - mixed government (Polybius), separation of powers (Montesquieu), the need for precautions against the tyranny of the majority (de Lolme) - within a single catch phrase. This was a rhetorical, not an intellectual, achievement, for Adams did not grasp the full significance of the new legislative balances and checks identified by Spelman and de Lolme. Although he had some sense that the English constitution was self-regulating, he did not go much beyond Polybius and Montesquieu in his understanding of why this was so. Nevertheless he was convinced that "the English constitution is, in theory, both for the adjustment of the balance and the prevention of its vibrations [my italics], the most stupendous fabric of human invention." [144]

So the history of the idea of checks and balances is much more complicated than has previously been recognized, and that history can only be understood in relation to the idea of a constitution as a machine, sometimes a self-regulating machine. Without mechanical thinking, the first form of systems analysis, there could have been no "modern" (as opposed to ancient or medieval) form of liberty. [145] The idea of limited government, of checks and balances, originally depends on the metaphor of a constitution as a machine in a state of equilibrium, and in its sophisticated form depends on some practical acquaintance with feedback mechanisms. For Madison, representation was "this great mechanical power… by the simple agency of which the will of the largest political body may be concentered and its force directed;" hence the need to check and balance it with care. [146] In this sentence the phrase "mechanical power" is to be taken seriously as a tool with which to think. I started with Nietzsche's statement that truths are really metaphors. If Nietzsche is right, the first task of the historian of ideas must be to bring back to life all the long dead metaphors. I have tried to make a start here by showing that the metaphor of "constitutional machinery" was once vigorous and capable of doing real work; indeed it is to this metaphor that we owe all but the most elementary components of the idea of limited government.

For it should now be apparent that the whole modern tradition of constitutional theory, from Trenchard and Moyle onwards, is concerned to limit the power of government. Initially the emphasis was on limiting the executive, but over time checks-and-balances theorists became increasingly concerned to limit government in general, and eventually they came to see the chief danger as coming from the legislature in particular. Trenchard and Moyle were supposed to have said (and Fletcher of Saltoun certainly did say in 1698) "For not only that government is tyrannical which is tyrannically exercised, but all governments are tyrannical which have not in their constitution sufficient security against the arbitrary power of their prince." [147] For Fletcher and his associates the executive was the problem. Bolingbroke made a similar point in much more general terms: "tyranny and slavery do not so properly consist in the stripes that are given and received, as in the power of giving them at pleasure, and the necessity of receiving them, whenever and for whatever they are inflicted." [148] And we have seen Gouverneur Morris writing in 1776 of the need to diminish political liberty, the freedom of action of our rulers, in order to increase civil liberty: it was checks on the legislature that he had particularly in mind.

These last two quotations from Fletcher and Bolingbroke are examples of what Quentin Skinner has termed the neo-Roman republican theory: the theory that for liberty to exist it is not sufficient that there is no tyranny; rather it is necessary that no one has the power to act tyrannically. [149] As we have seen, checks-and-balances theorists maintained that where someone has the power to act tyrannically, tyranny is the inevitable outcome. On Skinner's account neo-Roman theorists were committed to a particular type of guarantee against tyranny: they held that a state was free if was governed by its citizens, either assembled or through their representatives. Any claim to a prerogative power which could be exercised against the wishes of the representatives of the political community was (as in the quotation from Fletcher) a claim to a tyrannical power. Thus if, after the Restoration, neo-Roman theorists claimed to be able to accept the idea of monarchy, they could do so only because they intended to make the monarch a merely symbolic figurehead without any real power, a Venetian doge. Rousseau and Paine, one might comment, would have understood this argument for autonomy or self-government: a political community must be its own master if it is to be no one's slave.

But the argument for popular sovereignty is not the only way of responding to the problem of the potential for tyranny, and it is the alternative to it which I have been exploring here. This response is based, in the first place, on the recognition that representative government can never be the same as self-government: it acknowledges the problem of corruption and of the emergence of elites. This was a problem which preoccupied the true Whigs in their opposition to the court Whigs. Second, it faces up to the fact that the majority may wish to tyrannize the minority. "It is a mistaken notion in government," writes Gordon in 1721, "that the interest of the majority is only to be consulted, since in society every man has a right to every man's assistance in the enjoyment and defense of his private property; otherwise the greater number may sell the lesser, and divide their estates among themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority." [150] Here the key issue was not so much property but, as Gordon immediately went on to emphasize, religion, for the House of Commons had repeatedly shown itself hostile to the rights of religious minorities. In order to recognize this problem of majority tyranny a conceptual shift was necessary, for it is not until 1691 that the word "majority" is used in the sense of "the greater number or part" (rather than, for example, to refer to the age of majority), the assumption until then being that the decisions of an assembly properly reflected a consensus. [151] And the passage from Gordon I have just quoted may be the first occasion on which "minority" is used to mean the smaller number - the earliest example given by the OED is from 1736. [152]

This shift involved rejecting the view, which Skinner says lay at the heart of neo-Roman political theory, that one could think in terms of "the body" of the political community, and attribute a single will to the nation; and it thus prepared the ground for an eventual recognition that party-political divisions might be essential to the preservation of liberty. Advocates of checked and balanced government held that the power of the state must be limited so that it is incapable of summoning the strength to act tyrannically. "Only the checks put upon magistrates make nations free; and only the want of such checks makes them slaves," writes Trenchard in 1722 in an essay on "The encroaching nature of power, ever to be watched and checked", but as he goes on to develop this argument it becomes clear that he is not simply concerned to check the power of the executive and make it subordinate to the legislature, but rather to make the more general claim that all power tends to corrupt and must be confined within limits: hence the reluctance of Parliaments to vote for annual elections. "The Romans, who knew this evil [the divergence between the interests of the rulers and the ruled], having suffered by it, provided wise remedies against it; and when one ordinary power grew too great, checked it with another. Thus the office and power of the tribunes was set up to balance that of the consuls… And when the authority of the tribunes grew too formidable, a good expedient was found out to restrain it" by requiring that the tribunes always act unanimously. [153] Even the representatives of the people needed to be restrained in the cause of liberty. John Adams regarded it as a fundamental axiom that " A single assembly is liable to all the vices, follies, and frailties of an individual ." [154] "An elective despotism was not the government we fought for," wrote Jefferson in 1784, "but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others." [155]

The argument that power tends to corrupt was not new: it had been clearly formulated by Nedham in The Excellencie of a Free State . Earlier theorists would surely have accepted that power has, as Nedham explained, its own peculiar temptations:

The reason is, because (as the Proverb saith) honores mutant mores ; "Honours change men's manners;" accessions, and continuation of power and greatness, expose the mind to temptations: they are sails too big for any bulk [i.e hull - cf OED s.v. bulk ] of mortality to steer an even course by. The kingdoms of the world, and the glories of them, are baits that seldom fail when the Tempter goes a-fishing, and none but He that was more than man, could have refused them.

But Nedham was able to place a whole new emphasis on the tendency of power to corrupt because he had a new theory, the separation of powers, of how it was possible for a people "so to regulate their affairs, that all temptations and opportunities of ambition, may be removed out of the way." [156]

Thus the same neo-Roman definition of individual liberty as the antithesis of slavery could be used for a variety of political purposes. Skinner, in arguing for the coherence of the neo-Roman conception of liberty, appears to think that a doctrine of popular sovereignty always follows from it - and indeed Trenchard ends his essay with the claim that the Roman mechanism of "an appeal to the people" is the best of all protections for liberty. But even for Trenchard (who acknowledges that the people may sometimes, if rarely, abuse their sovereign power), and for Gordon (who fears a conspiracy of the many against the minority), and even more clearly for Nedham (who had been reprinted in 1767), for de Lolme and for the founding fathers, what also followed from the neo-Roman account of liberty was an argument for the separation of powers and for checks on the power of the legislature as well as the executive, for any concentration of power (even in the hands of the majority) was now held to be dangerous. Even now this is not - in Great Britain at least - simply an academic issue, for a debate between those who insist on the need to maintain a unified Parliamentary sovereignty (which, it is claimed, is the only reliable guarantee against tyranny) and those who are willing to see sovereignty distributed through the organs of a federal Europe (which, it is claimed, is the best way of taming the nation state, and of preventing the emergence of a new Hitler or Mussolini) has been central to British political debate over the last half century.

The new argument for limited government did not simply displace existing discourses. [157] Historians of political thought have tended to write as if there were a number of alternative languages - ancient constitutional or Cokean; natural rights or Lockean; republican or neo-Harringtonian - available in the eighteenth century for discussing politics. To stress the importance of one language, it has been assumed, implies a reduction in the significance of the others, so that John Pocock's work has been read (and is intended to be read) as implying that republican discourse was much more important than the argument from natural rights. But this way of thinking does not do justice to the texts we have been considering. No one had a higher opinion of Locke than Moyle (who quotes with approval the view that the Two Treatises are "the ABC of politics") [158] yet Moyle is one of the founders of the new mechanical language and an admirer of classical republics. So too in Cato's Letters Trenchard and Gordon seem to oscillate from one moment to the next between a Lockean and a republican language. For these thinkers, however, these were not several alternative languages for discussing politics; they were rather several languages, each of which was appropriate for a different aspect of politics. Locke established natural rights and the principle of government by consent, thereby providing a theoretical foundation for liberty (including religious liberty). The neo-Roman republican theory defined liberty as the absence of the capacity to tyrannize. And the language of checks and balances explained how a constitution could be constructed so that liberty was maximized. Just as one would expect an architect to be familiar with issues of the aesthetics of form, structural engineering, and quantity surveying, so the language of politics had a normative discourse of rights, a theory of liberty grounded in an account of human psychology, and a value-free account of constitutional engineering. These were not seen as alternative languages: each was taken (one can see the process at work in Cato's letters 60 to 62, for example) to imply the next. They were mutually supporting. Similarly in The Federalist Lockean and Humean arguments are taken to be complementary, not (as a modern reader might naturally assume) at odds with each other. [159]

I promised that my history of "checks and balances" could help us rethink our own political commitments, and it will if it makes us take constitutional machinery seriously. This should be evident from the way in which my account of the implications of neo-Roman arguments diverges from Skinner's. But one must recognize that to seek to limit government so that it cannot act tyrannically, to check and balance, to internally divide it so that power is set against power, may well be to weaken its capacity to do good as well as ill. In the United Kingdom we have a strong and powerful government: there is no effective division between legislature and executive; the powers of the second chamber are weak (it cannot, for example, oppose legislation to implement manifesto commitments made by the governing party, nor can it initiate budgetary measures); the judiciary is not fully independent; the legislature has a limited and diminishing capacity to hold the executive to account; the first past the post system tends to ensure one party government; the government can call elections whenever it chooses; the independence of the civil service (a check new in the nineteenth century) is under threat; and so on. Proper checks and balances would mean a far weaker government, a government which would find it much harder to "deliver", to use the word which is currently the most popular in government speeches. A weaker government might have to recognize that it had no option but to hand over the task of managing schools, universities, hospitals to genuinely independent management, management released from the checks and balances that are entirely appropriate in a political context. This is an old argument, and I hardly need to rehearse it at any length here, but it is worth noting that it is different from, even if it often points in the same direction as, arguments against government monopolies and in favor of competition. The standard "Thatcherite" arguments for privatization of public services derive from Smith, while this argument derives from Madison.

But I have a new argument to make as well. Harrington believed that his constitution could remain unchanged and unchanging because the ballot and rotation would prevent corruption, and so would constantly return the political system to its original starting point. He mocked Machiavelli for thinking that political reform required the irregular intervention of bold politicians who would bring the political system back to its founding principles; his system was constantly self-reforming. We can still see something of this way of thinking in the arguments of Spelman and de Lolme. Their balance may be dynamic, but its oscillations or vibrations do not alter the system. Madison, it seems to me, takes a cautious step away from this way of thinking. When he discusses the conflict between factions he assumes that factions can simply cancel each other out. But when he talks about the parts of government keeping each other in their proper places, he envisages them as being in a constant struggle for power, an unending series of attacks and counterattacks. Out of this struggle will come political decisions and political action. In such a world there will be (as in the international struggle for power which constantly recreates a balance of power) long-term winners and losers. As the decades pass the system may begin to be quite different from what it was at its first foundation. In rejecting external control Madison was rejecting the possibility of restoring the American constitution, as Machiavelli believed all constitutions needed periodically to be restored, by recalling it to its founding principles; but in his description of internal control he was also rejecting the Harringtonian conviction that the constitution could be prevented from ever changing. He was, it seems to me, proposing to let the system run, on the presumption that as long as power was divided against power, as long as there were adequate barriers to a monopoly of power, the system could be allowed to evolve over time. In other words, what Madison had in mind was something much more like a market (he was an early reader of Smith), which is self-stabilizing but never repeats itself, than like a fan-tail windmill, which comes back again and again to the same starting point.

Two surprising consequences follow. The first affects our idea of a written constitution, for although Madison was defending a written constitution, he was thinking in terms of a flexible and developing system, despite the fact that the two are normally thought to be, if not incompatible, then certainly in a dynamic tension. The second affects our idea of checks and balances, for if Madison had the idea, not just of a dynamic equilibrium, but of a dynamic evolution, of what one might call a political ecology, in which equilibria are constantly being established and reestablished, but change radically over time, then the idea of checks and balances is not necessarily as static, as fixed, as negative as is usually assumed. Unlike Montesquieu, Madison did not imagine that the various organs of government could be required to act in concert; rather he envisaged a system where the conflict between the organs of government would have unintended consequences that were beneficial to the public. A political system in which there are numerous checks and balances could also be one which is flexible, adaptable, resilient. It is precisely because the idea of checks and balances can be used to think about dynamic interactions, not just restrictions on freedom of action or static equilibria, that it contains a largely untapped potential to help us think about political change, and about a central political problem: how a political system can be engineered to be both limited in its power to do evil, and at the same time quick to adapt to changing circumstances. Trenchard and Moyle were concerned that "the very excellence of our government betrays it to some inconveniences, the wheels and motions of it being so curious and delicate that it is often out of order," and this was because they conceived of the constitution as a complex mechanism incapable of self-regulation. [160] Madison, by contrast, imagined a constitution so curious and delicate that it need never go out of order, and this not because it would never go wrong, but because it would have the capacity to right itself when it did go wrong. If Trenchard and Moyle were the first of the political engineers, he was the founder of a new discipline which we may term (despite the obvious anachronism) political cybernetics.

What makes adaptation possible is that checks and balances not only serve to secure our liberty, they also entrench disagreement into the political system, and thus protect out collective capacity for critical reflection; we need them not only as a bulwark against tyranny, but also to preserve our capacity for innovation. Only where conflict is institutionalized within government will debate and disagreement flourish, in the process encouraging novelty without (the claim is a remarkable one) endangering stability.

1 I have modernized spelling and punctuation of quotations and titles in the text, but not the footnotes. An earlier version of this paper was given as the keynote address to the annual meeting of the British Society for Eighteenth Century Studies, 2002. I am grateful for many helpful suggestions, particularly from Blair Worden and Paul Rahe (who both told me to read Nedham, amongst much else), Harold Cook (who told me to read Mayr), Iain Hampsher-Monk (who told me to read Blackstone), and Claude Rawson (who told me to read Ellis).

2 Stanley Pargellis, "The Theory of Balanced Government," in Conyers Read ed., The Constitution Reconsidered (New York: Columbia University Press, 1938), 37-49, p. 37.

3 Invisible is a slight, but only a slight, overstatement. In addition to Manin's chapter (on which see below, p. ** [and add reference to his article in The Critical Dictionary of the French Revolution , 1989]) there is Pargellis, "Theory of Balanced Government", and E.P. Panagopoulos, Essays on the History and Meaning of Checks and Balances (Lanham Md.: University Press of America, 1985). Also relevant to the subject of this paper is [Anon.], "Organic and Mechanical Metaphors in Late Eighteenth-Century American Political Thought", Harvard Law Review 110 (1997), 1832-49. But the work which most closely touches on the topics I address here is chapter two of A.O. Lovejoy, Reflections on Human Nature (Baltimore: John Hopkins University Press, 1961), "The Theory of Human Nature in the American Constitution and the Method of Counterpoise" (pp. 37-65). Lovejoy there offers a reading of Federalist 10 with which I agree: I think this "static" reading (which takes Madison's argument on factions to be the equivalent of Locke's on religious sects in the Letter Concerning Toleration - cf. John Locke, Political Writings , ed. D. Wootton [Harmondsworth: Penguin Books, 1993], p. 429) is compatible with, but distinct from, the "dynamic" reading of Federalist 51 which I offer at the end of this essay. It is important to note a difference between the logic of Federalists 10 and 51: 10 is about ensuring that no faction has a majority in the legislature while 51 is about ensuring there is a balance of power between the various institutions and officers established by the constitution. 10 is consequently about overbalance ; 51 about equilibrium . Overbalances are static; equilibria, because they have to be constantly re-established, are dynamic.

4 Garry Wills, Explaining America: The Federalist (Garden City: Doubleday, 1981), 117. Others err in the opposite direction, e.g. Roger Scruton, A Dictionary of Political Thought (London: Pan Books, 1985), s.v. "checks and balances", which suggests the phrase derives from Jefferson's Notes on the State of Virginia (written 1784, first American edition 1787), on which see below.

5 See M.J.C. Vile, Constitutionalism and the Separation of Powers (2 nd ed., Indianapolis: Liberty Fund, 1998) and W. B. Gwyn, The Meaning of the Separation of Powers (New Orleans: Tulane Studies in Political Science, No. 9, 1965).

6 OED CD-Rom, s.v. check .

7 Nietzsche, "On truth and lie in an extra-moral sense", in The Portable Nietzsche , trans. Walter Kaufman (London: Chatto and Windus, 1971), p. 46.

8 The term "Cambridge School" has become a conventional way of referring to the work of John Dunn, John Pocock, Quentin Skinner and their pupils. On linguistic change see for example Q. Skinner, "Language and Social Change" [1980], in James Tully ed., Meaning and Context (Princeton: Princeton University Press, 1988), pp. 119-132. I should stress that my own efforts here are rather primitive in that I have made little use of electronic texts. A pioneering example of what can be done with modern technology is provided by Nicholson Baker, "Lumber", in The Size of Thoughts: Essays and Other Lumber (London: Chatto and Windus, 1996), 207-355.

9 e.g. R. Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979), p. 1; Q. Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998), pp. 107-20 (on which see the review by Blair Worden, London Review of Books (1998:3) .

10 J.P. Kenyon ed., The Stuart Constitution, 1603-1688 (Cambridge: Cambridge University Press, 1966), p. 21, unreliably quoted in James Harrington, Political Works , ed. J.G.A. Pocock (Cambridge: Cambridge University Press, 1977), p. 19.

11 Harrington, Political Works , ed. Pocock, pp. 20, 22 (referring to Philip Hunton, A Treatise of Monarchy (1643), pp. 69, 23.

12 Hunton, Treatise , p. 28.

13 Hunton, Vindication (1651), p. 44.

14 OED CD-Rom, s.v. mechanics , mechanism , machine , engine , automaton .

15 Otto Mayr, Authority, Liberty and Automatic Machinery in Early Modern Europe (Baltimore: Johns Hopkins University Press, 1986), pp. 47-8. Mayr's excellent book fails to note the republican use of mechanical imagery.

16 John Trenchard and Thomas Gordon, Cato's Letters (1720-3), ed. Ronald Hamowy (2 vols. [continuous pagination], Indianapolis: Liberty Fund, 1995), No. 69, p. 497.

17 Plutarch, Lives , intro. by John Dryden (5 vols., 1683), I, 195-6.

18 [Trenchard and Moyle], An Argument Shewing That A Standing Army Is Inconsistent With A Free Government (1697), reprinted in State Tracts (3 vols., 1714), III, p. 566.

19 Reprinted in Gwyn, Meaning of the Separation of Powers , p. 138. Trenchard used both clog and check: p. 140.

20 Moyle, The Whole Works (1727), 59. See Gwyn, Meaning , p. 88. On Moyle see Caroline Robbins, Two English Republican Tracts (Cambridge: Cambridge University Press, 1969).

21 Blair Worden, "Whig history and Puritan politics: the Memoirs of Edmund Ludlow revisited," Bulletin of the Institute of Historical Research 75 (2002), 209-37, at p. 222.

22 [Anon.], A Letter to A, B, C, D, E, F, etc. Concerning their Argument (1698), p. 13.

23 OED CD-Rom s.v. engineering .

24 The best discussion of the debates of 1697-1701 is the introduction to Jonathan Swift, A Discourse of the Contests and Dissentions between the Nobles and Commons in Athens and Rome (1701), ed. F.H. Ellis (Oxford: Clarendon Press, 1967); more recently Blair Worden has published a number of studies which transform our understanding of the politics of Toland and his associates, the most recent being "Whig history and Puritan politics: the Memoirs of Edmund Ludlow revisited".

25 [Trenchard and Moyle], Argument , ed. cit., 566.

26 Moyle, Whole Works , p. 53.

27 Cato's Letters , p. 461. In citing Cato's Letters and The Federalist I refer to the individual authors who we now know wrote individual sections, rather than to "Cato" (or Trenchard-and-Gordon) or "Publius" (or Madison-Jay-and-Hamilton).

28 Harrington, Political Works , 286, 834.

29 OED CD-Rom, s.v. system .

30 OED CD-Rom, s.v. constitution . J.H. Burns, "Bolingbroke and the Concept of Constitutional Government," Political Studies X (1962), 264-76. Dissertation , Letter X: Works (5 vols., London, 1744), vol. II, 130.

31 Dissertation , Letter XI: Works II, 157; Letter IX: Works II, 125.

32 Adam Smith, Essays on Philosophical Subjects , ed. I. S. Ross (Indianapolis: Liberty Fund, 1982), p. 66. See OED CD-Rom s.v. system , solar , Copernican .

33 David Hume, Essays, Moral, Political, and Literary , ed. E.F. Miller (Indianapolis: Liberty Classics, rev. ed. 1987), p. 273.

34 The Political Writings of John Adams , ed. George W. Carey (Washington, D.C.: Regnery, 2000), 647.

35 Sir James Steuart, An Inquiry into the Principles of Political Oeconomy , ed. A.S. Skinner (4 vols., Chicago: University of Chicago Press, 1998), vol. 2, p. 217; see also 278-9.

36 Kurt von Fritz, The Theory of the Mixed Constitution in Antiquity (New York: Columbia University Press, 1954), p. 365. (Quoted without demur in James M. Blythe, Ideal Government and the Mixed Constitution in the Middle Ages [Princeton: Princeton University Press, 1992], p. 27.)

37 F. W. Walbank, A Historical Commentary on Polybius (2 vols., Oxford: Clarendon Press, 1957), I, pp. 660-1.

38 Fragment de Polybe; et quelques extraits de Spelman sur la meilleure forme de Gouvernment possible (1789?), p. 27.

39 Polybius, The Histories , trans. W. R. Paton (6 vols., London: Heineman, 1923), III, p. 291.

40 Kenyon ed., Stuart Constitution , p. 21.

41 It is missing, for example, from the edition introduced by Dryden (1693), and translated by Sir Henry Shears, but does appear in the 1698 reprint, where the additions are described as translated by "another hand" (pace ESTC). Its relatively late date means, I think, that this translation of Polybius was not an important factor in the emergence of the new mechanical language. Ellis thinks that this translation was used by Swift (who quotes Polybius), on the grounds that Swift may have known Sir Henry Shears, who he mistakenly thinks is the translator of the whole text, but I see no reason to assume that Shears would have brought this second edition, in which he seems to have had no part, to Swift's attention, and Swift's own quotation suggests he was translating Polybius himself from either Latin or Greek.

42 Pargellis, "The Theory of Balanced Government," p. 45

43 The History of Polybious , trans. Edward Grimeston (1634), p. 287.

44 On Polybius, and classical learning in general, but with no mention of Plutarch, see Gilbert Chinard, "Polybius and the American Constitution," Journal of the History of Ideas 1 (1940), 38-58. I don't deny that Polybius was known - he is referred to by Milton, Moyle, Toland, and Swift - but his relative importance as compared to Plutarch needs assessment.

45 I quote from the 1676 edition, p. 36.

46 Moyle, Whole Works , p. 56.

47 On Moyle and the separation of powers see Gwyn, Separation , 87-8; Vile, Constitutionalism , while discussing Nedham, Bolingbroke, and Montesquieu, unfortunately contains no discussion of Moyle.

48 Harrington, Political Works , 196; OED CD-Rom, s.v. libration ; Harrington, Political Works , 178 (an earlier use). The word occurs twice in Oceana , and from there it enters the debates of 1697-1701.

49 Harrington, Political Works , p. 341.

50 Cato's Letters , No. 61: ed. cit. p. 421.

51 Montesquieu, The Spirit of the Laws , trans. Anne M. Cohler et al (Cambridge: Cambridge University Press, 1989), p. 63.

52 Montesquieu, Spirit of the Laws , pp. 155-66.

53 Adams was the author of the Massachusetts constitution of 1780 ( Political Writings , 498-551), which is often thought to provide the model for the "checks and balances" in the American constitution, and which perhaps best exemplifies what he was defending in 1787: see A. Hamilton, J. Jay, J. Madison, The Federalist , ed. G.W. Carey and J. McClellan (Indianapolis: Liberty Fund, 2001), xxx. There is no occurrence of the phrase "checks and balances" (or any equivalent) in Madison's notes on the Proceedings of the Federal Convention, although there are frequent references to checks, and occasional references to balances.

54 OED CD-Rom, s.v. check ; Adams, Political Writings , p. 110; Friends of the Constitution: Writings of the "Other" Federalists , ed. C. A. Sheehan and G. L. McDowell (Indianapolis: Liberty Fund, 1998), p. 378; The Federalist , no. 9, p. 119; Isaac Kramnick's introduction to The Federalist (Harmondsworth: Penguin Books, 1987), pp. 64-5 - the edition I cite.

55 I was, at least, in the best company: see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, 1967), p. 274.

56 The idea of an equilibrium was of central importance for Greek science: it is a key concept, for example, in Greek medicine.

57 Quoted in Kramnick's introduction, The Federalist , p. 63.

58 Harrington, Political Works , 249.

59 Quoted in Mayr, Authority, Liberty , p. 143.

60 Adams, Defence , ch. 4 ( Political Writings , pp. 132-8); Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), p. 577 (which fails to identify the borrowing from Swift).

61 See Mayr, Authority, Liberty , p. 142.

62 Moyle, Whole Works , 51; A Letter to A, B, C, D, E, F, etc. Concerning their Argument (1698), p. 12.

63 Swift, Discourse , ed. Ellis, pp. 84-5. Quoted in Mayr, Authority, Liberty , p. 160; see Adams, Political Writings , p. 135.

64 Montesquieu, Esprit des lois (2 vols, Paris: Garnier, 1961), vol. 1, p. 172 (my translation: compare Cohler translation, p. 164).

65 American Political Writing During the Founding Era , ed. C. S. Hyneman and D. S. Lutz (2 vols., Indianapolis: Liberty Fund, 1983), p. 405 (and Adams, Political Writings , p. 486).

66 Montesquieu, Persian Letters , trans. C. J. Betts (Harmondsworth: Penguin Books, 1973), p. 187.

67 Bolingbroke, in The Craftsman , published separately in 1743 in Remarks on the History of England ; Letter VII, Works I, p. 341. Quoted in Gwyn, Meaning , p. 95.

68 Quoted in Mayr, Authority, Liberty , p. 163; [Edward Spelman], A Fragment out of the Sixth Book of Polybius (London, 1743), note to p. 49.

69 I. Bernard Cohen, Science and the Founding Fathers (New York: W.W. Norton, 1995), p. 210.

70 Cohen, Science , pp. 204-10, 218-22.

71 Bernard Manin, "Checks, balances, and boundaries: the separation of powers in the constitutional debate of 1787," in B.-M. Fontana ed., The Invention of the Modern Republic (Cambridge: Cambridge University Press, 1994), 27-62, p. 59; Centinel in The Anti-Federalist , ed. Herbert J. Storing (Chicago: University of Chicago Press, 1985), p. 15; Adams (writing to Sherman in 1789), Political Writings , 449-50.

72 I leave aside a form of the balance which would have been familiar to anyone in the eighteenth century, the steelyard, on the grounds that it employs the principle of the lever to turn unequal weights into equal forces.

73 The literature on de Lolme is thin, but see Jean-Pierre Machelon, Les Idées Politiques de J.L. de Lolme (Paris: Presses Universitaires de France, 1969) and Mark Francis with John Morrow, "After the ancient constitution: Political theory and English constitutional writings, 1765-1832," History of Political Thought 9 (1988), 283-302.

74 De Lolme, Constitution , pp. 196, 203-4, 220, 322, 195

75 Federalist , no. 48, p. 309; no. 51, p. 320. See also Jefferson in 1789: "The tyranny of the legislatures is the most formidable dread at present, and will be for long years." ( The Portable Thomas Jefferson , ed. Merrill D. Peterson (New York: Viking Penguin, 1975), 439-40.

76 The Writings and Speeches of Oliver Cromwell , ed. W.C. Abbott (4 vols., Cambridge, Mass.: Harvard University Press, 1937-47), vol. iv, p. 417. This is Burton's report of the speech; Morgan's version (p. 418) has "You are offended at a House of Lords. I tell you that unless you have some such thing as a balance you cannot be safe." For Cromwell's endorsement of Nedham's defence of the Instrument of Government see vol. Iii, p. 587. I owe these references to Blair Worden.

77 Moyle, Whole Works , 49, etc. The passage on p. 49-50 ('This wise lawgiver [Lycurgus] made such checks in the executive part of the government that in the administration they reciprocally controlled each other.') is a mystery. It appears, since it is in italics, to be a quotation, but comes, as far as I can see, neither from Herodotus nor Fletcher of Saltoun. If it is a quotation it would be good to know from what; but its appearance of being a quotation may well be (since the work was published posthumously) a misinterpretation of Moyle's manuscript. Trenchard, Short History of Standing Armies , 1698, p. vi; Gwyn, Meaning , p. 140. State Tracts , III, 638, 652. Justin Champion tells me Toland reprinted The Danger of Mercenary Parliaments in 1721/2 with a new preface for Molesworth's election campaign.

78 e.g. M. Nedham, The Excellencie of a Free State [1656] (repr. London, 1767), pp. 5, 126-7 ('curb'), 65 ('bridle'). The 1767 reprint of Nedham's Excellencie of a Free State was widely known in America before the Revolution - more difficult, and more interesting, is the extent of Nedham's influence on the radical Whig tradition in the late seventeenth and early eighteenth centuries: see Worden, "Whig History", n. 58.

79 Moyle, Whole Works , 56-7; Gwyn, Meaning , p. 88.

80 Gwyn, Meaning, p. 98; Federalist , no. 58, p. 350.

81 Montesquieu, Esprit des lois (ed. cit.) vol. 1, pp. 169-72; De Lolme, Constitution , p. 405.

82 OED CD-Rom, s.v. responsibility . The word occurs frequently: Federalist , 370, 405-7, 435-6, 444.

83 Gunnar von Proschwitz, "Responsabilité: L'idée et le mot dans le débat politique du XVIII e siècle," in Actes du X e Congrès internationale de linguistique et philologie romane (1965), 385-97.

84 Unpublished paper by Vittoria Franco, "Individuo moderno, responsabilità, frantumazione delle gerarchie sociali."

85 OED CD-Rom, s.v. responsible . The need to make rulers accountable is a recurring theme of Nedham's, e.g. A True State of the Case of the Commonwealth [1654] (repr. Exeter: The Rota, 1978), p. 38; Excellencie of a Free State , pp. 72-3.

86 Gwyn, Meaning , p. 141.

87 See quotation in Mayr, Authority, Liberty , p. 162.

88 OED CD-Rom, s.v. accountability .

89 Dissertation , Letter XVII: Works , II, 224.

90 De Lolme, Constitution , 291-305, 319-20, 427-8, 439. One may compare de Lolme with Hume, "Of the Liberty of the Press" (1741), particularly in its earlier version: David Hume, Essays Moral, Political and Literary , ed. Eugene F. Miller (rev. ed., Indianapolis: Liberty Fund, 1987), 9-13, 604-5.

91 A Letter to A, B, C, D, E, F, etc. Concerning their Argument (1698), 2; A true account of land forces in England (1699), 1-2; A Letter to His Most Excellent Majesty (1698), 633.

92 OED CD-Rom, s.v. clog ; Mayr, Authority, Liberty , p. 161 (NB Mayr's inconsistency on the date of this text); "clog" already appears in close proximity to "check" in Trenchard: Gwyn, Meaning , p. 140.

93 Thomas Paine, Rights of Man, Common Sense and Other Political Writings , ed. Mark Philp (Oxford: Oxford University Press, 1995), pp. 9-10. On the importance of this passage, see Bailyn, Ideological Origins , pp. 285-6.

94 Wood, Creation , p. 224.

95 De Lolme, Constitution , pp. 218-228. The Instrument of Government provided a delay of twenty days between the passage of legislation and its taking effect, a provision defended by Nedham ( A True State of the Case of the Commonwealth , p. 35) as providing time for reflection, while in

96 Wood, Creation , p. 239.

97 Adams, Works (**), IV, p. 390. [cross refs to Works in refs to Political Writings **]

98 Federalist , No. 63, p. 371; see Manin, "Checks," pp. 60-62.

99 Compare Spirit of the Laws , pp. 162, 182.

100 Manin, "Checks," pp. 30-31.

101 Nedham, A True State of the Case of the Commonwealth , pp. 10, 33; the word check also occurs on p. 22, in the context of a discussion of the danger of an executive power "without check or controll."

102 [Toland], Art of Governing by Partys (1701), 31. It is possible that Toland is the source of later usages of "checks and balances": this work was twice reprinted (c. 1757, c. 1760). For an example of Trenchard using check and balance in close proximity and as synonyms, see below, p. ** .

103 Spelman, Fragment , p. iv.

104 Quoted in Pargellis, "Theory," pp. 47-8.

105 Quoted in Paul Rahe, Republics Ancient and Modern (Chapel Hill: University of North Carolina Press, 1992), pp. 562-3.

106 Cohen, Science , 225-6.

107 Dissertation , Letter XVII: Works , II, 224.

108 Anti-Federalist , ed. Storing, p. 15.

109 There was an unauthorised reprint of Spelman's Fragment in 1747 under the title Polybius's Glorious Discourse , and an authorised reprint in an appendix to vol. 1 of Spelman's 4 vol. edition of Dionysius of Halicarnassus (1758). Adams reproduces lengthy passages from Spelman's translation of Polybius in the Defence , Works , IV, pp. 435-9; he also reproduces passages from Spelman's translation of Dionysius. Spelman's preface, but not his translation, were reproduced in the French Revolutionary text Fragment de Polybe . Selections from Spelman are reproduced in J.A.W. Gunn ed., Factions No More (London: Frank Cass, 1972), 151-3 and in Peter Campbell, "An Early Defence of Party", Political Studies , III, 166-7. On Spelman see A. Momigliano, "Polybius Between the English and the Turks" (1974), in Momigliano, Sesto contributo alla storia degli studi classici e del mondo antico (2 vols., Rome: Edizione di storia e letteratura, 1980), 125-41; Caroline Robbins, "'Discordant Parties', a study of the acceptance of party by Englishmen", Political Science Quarterly 73 (1958), 505-29: 527.

110 See, for example, Nedham, Excellencie , p. 160: "Now that you may know what faction is, and which is the factious party in any state of kingdom, afflicted with that infirmity; the only way is first to find out the true and declared interest of state; and then if you observe any designs, counsels, actings, or persons, moving in opposition to that which is the true public interest, it may be infallibly concluded that there lies the faction, and the factious party."

111 Spelman, Fragment , v-viii.

112 De Lolme, Constitution , pp. 206-13; see also pp. 271-80.

113 Plutarch, Lives , introd. Dryden (1683), I, 141-2.

114 Cato's Letters , No. 70, p. 504. Compare Nedham, in A True State of the Case of the Commonwealth , p. 36, arguing the need for frequent elections: "And how unapt men are of their own accord to part with such power, when they have got it once into their hands, how apt they are to corrupt like standing Pools, and contract an arbitrary distemper in execution of Law, and what miserable inconveniences must follow thereupon, we, and all the people of the Land can tell be too sad experience."

115 Jean Louis de Lolme, The Constitution of England (rev. ed., London: Robinson and Murray, 1789), pp. 533-4.

116 Anti-Federalist , ed. Storing, p. 15.

117 In other words, they would have read Polybius as if corrected along the lines proposed by Moyle: see his An Essay Upon the Constitution of the Roman Government in Robbins, Two Republican Tracts , p. 231.

118 An Argument , in State Tracts , III, 565.

119 The Federalist Papers , no. 48, pp. 309, 312; no. 73, p. 418; Storing, Anti-Federalist , p. 319.

120 Cato's Letters , No. 116, p. 814. There are certainly connections to be made between systems analysis, the mechanical philosophy, and materialism: a valuable starting point is provided by Harold J. Cook, "Body and Passions: Materialism and the Early Modern State", in Osiris 17 (2002), 25-48, but it is worth remembering that one could be a mechanist and materialist without wanting a complex state system - one need think only of Helvétius.

121 Arnold Geulincx, Ethics , tr. 1, ch. 2 (**trans. J. Cottingham, p. 211). (? in John Cottingham ed., Western Philosophy: An Anthology (Oxford: Blackwell, 1996)**)

122 OED CD-Rom, s.v. regular .

123 See Mayr, Authority, Liberty , and also Mayr, The Origins of Feedback Control (Cambridge, Mass.: MIT Press, 1970).

124 OED CD-Rom, s.v. self-governed .

125 Thus Nedham is careful to insist that frequent elections are not enough, but must be accompanied by term limits: Excellencie , 42-3, 60-1, 76-7, 107-9.

126 Thus Nedham insists that all citizens should know the principles of liberty, and attacks the Venetian constitution as tyrannical; nevertheless he recommends that all debates of the senate should be held in secret: Excellencie , pp. xvi, 31-2, 103-5, 138-9.

127 De Lolme, Constitution , p. 259

128 De Lolme, Constitution , pp. 448-50. The earliest direct comparison between a constitutional mechanism (in this case a form of bicameralism) and a self-regulating machine that I know is in Sieyès. "Sur l'organisation du pouvoir législatif et la sanction royale" (7 Sept. 1789), in Orateurs de la Révolution française , vol. 1, Les Constituants , ed. F. Furet and R. Halévi (Paris: Gallimard, 1989), p. 1033: "Je ne vois pas, en effet, pourquoi, si l'exercice d'un veto suspensif est bon et utile, on le sortirait de la place que la nature des choses lui a destinée dans la législature elle-même. Le premier qui, en mécanique, fit usage du régulateur , se garda bien de la placer hors de la machine don't il voulait modérer le mouvement trop précipité."

129 "Life of John Adams" (in Works ** ), p. 625

130 See interview with Ignatief **.

131 Bolingbroke's influence in America is stressed in Bailyn, Ideological Origins ; for Hume and The Federalist see Wills, Explaining America and Douglass Adair, Fame and the Founding Fathers (Indianapolis: Liberty Fund, 1998).

132 Cato's Letters , no. 70, p. 504 (Gordon's words).

133 Cato's Letters , no. 60, p. 416-7. See also Adam Ferguson, An Essay on the History of Civil Society [1767, rev. ed. of 1773] (Farnborough, Hants.: Gregg International, 1969), pp. 214 ("Liberty is maintained by the continued differences and oppositions of numbers, not by their concurring zeal in behalf of equitable government") and 268 ("to prevent the practice of crimes, by balancing against each other the selfish and partial dispositions of men").

134 Manin, "Checks," pp. 57-8.

135 Adams, Works , IV, p. 358.

136 Federalist , no. 70, p. 407. Hamilton's No. 9, p. 119, which includes the phrase "legislative balances and checks" reads to me like a summary of De Lolme.

137 De Lolme, Constitution , p. 247.

138 Federalist , no. 55, p. 336.

139 De Lolme, Constitution , pp. 256-8.

140 De Lolme, Constitution , pp. 271, 276.

141 Hume, like de Lolme, thought the representative assembly needed to be weakened and the executive strengthened; but he was happy to see both objectives attained through corruption.

142 Federalist , no. 49, p. 318. The extensive discussion of party in Wills's Explaining America contains no hint that Madison ever wrote a sentence comparable to this one.

143 This phrase originates with de Tocqueville's Democracy in America , translated into English in 1835, though the first usage given by the OED is from Mill's On Liberty (1859). Classical and Renaissance views that are similar but not identical to the concept of majority tyranny are collected by Nedham in his attack on the Levellers: Marchamont Nedham, The Case of the Commonwealth of England Stated [1650], ed. Philip A. Knachel (Charlottesville: University of Press of Virginia, 1969), 99-101. Nedham's Excellencie of a Free State , with the self-perpetuating Rump Parliament in mind, insists that a representative assembly can easily become tyrannical, particularly when it is not held to account through frequent elections (pp. 96-101).

144 Adams, Works , IV, p. 358. Vibration had been used as a technical term by Sir James Steuart for the process by which a market moves about an equilibrium position: e.g. Inquiry , II, p. 146.

145 ref. Constant **. In making this claim I part company, I think, with Paul Rahe's indispensable Republics Ancient and Modern , which sees modern republicanism as largely complete with Harrington.

146 Federalist , no. 14, p. 141.

147 The passage appears to be a quotation from Trenchard's and Moyle's Argument in An argument shewing that a standing army with consent of parliament is not inconsistent with a free government (1698), p. 14, but I cannot find it there. It is to be found in a contemporary work by an author linked to them, Fletcher of Saltoun's Discourse of Government with Relation to Militias (1698): see his Political Works (1732), p. 9.

148 Bolingbroke, Dissertation Letter XIII: Works , II, 177.

149 Skinner, Liberty Before Liberalism .

150 Cato's Letters , No. 62, p. 427.

151 OED CD-Rom s.v. majority .

152 OED CD-Rom s.v. minority . The classic text on consensus politics is Mark Kishlansky, "The emergence of adversary politics," Journal of Modern History 49 (1977), 617-40..

153 Cato's Letters , No. 115, pp. 803-5.

154 Adams, Political Writings , 494 (Letter to John Penn, 1776).

155 Notes on the State of Virginia , in The Portable Thomas Jefferson , p. 164.

156 Nedham, Excellencie , p. 134-5; see also pp. 18-19 on "the lust of mankind after dominion" and pp. 147-53 on the separation of powers. For a classical text which comes near to expressing the view that power corrupts, see Plutarch, "Sallust", in Fall of the Roman Republic , trans. Rex Warner (rev. ed., Harmondsworth: Penguin, 1972), p. 104.

157 D. Wootton, "From Commonwealth to Common Sense", in Wootton ed., Republicanism, Liberty, and Commercial Society (Stanford: Stanford University Press, 1994), 1-41, p. 18, entirely misses the point which now seems to me crucial.

158 Moyle, Whole Works , p. 58.

159 See Morton While, Philosophy, "The Federalist", and the Constitution (New York: Oxford University Press, 1987), part 2: "The different legacies of Locke and Hume".

160 Argument , p. 566.

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Lesson Plan: Checks and Balances

The Constitution and Checks and Balances

Description

The principle of checks and balances prevents one branch of government from becoming too powerful. Examples of checks and balances include vetoing of bill, ratifying treating, judicial review and others. This lesson provides video clips with examples and explanations of checks and balances.

Have the students answer each of the following questions before starting class.

What are the three branches of government?

What responsibilities does each branch have?

• In what ways is power limited under the U.S. Constitution?

INTRODUCTION:

As a class, view the video below and have the students respond to the following questions. After viewing the video, review the concept of checks and balances and the powers of each branch of government with the students.

Video Clip: Checks and Balances (1:49)

In the video clip, Mr. Giles is discussing the idea of "checks and balances." Based on his description, explain the concept of "checks and balances." What are examples of this?

• How does the idea of checks and balances prevent one group from gaining too much power?

EXPLORATION:

Using the Checks and Balances Handout have the student watch each of the video clips. For each video clip, students will describe the actions in the clip, explain who has this power and who is being checked by this action. Review this information to address any misconceptions before moving on.

Video Clip: The Impeachment of Andrew Johnson (3:27)

Video Clip: Judicial Impeachment Trial (1:20)

Video Clip: Education Secretary Confirmation Hearing (:51)

Video Clip: President Obama urges Senate Ratification of the START Treaty (2:05)

Video Clip: Obama and the Veto Override (2:42)

Video Clip: History of Presidential Pardons (2:30)

Video Clip: Supreme Court Nominee Announcement (2:13)

Video Clip: Neil Gorsuch Confirmation Hearing (2:14)

Video Clip: Marbury v. Madison and Judicial Review (1:31)

APPLICATION:

Have the students break into small groups and assign each of the groups one of the following examples of checks and balances. Each group will describe this example of checks and balances, and prepare arguments about why it is important to maintaining a limited government. Students will present their descriptions and arguments to the class.

• Pardon and Clemency
• Veto and Veto Override
• Nomination and Confirmation of Federal Judges
• Nomination and Confirmation of Cabinet Members
• Ratification of Treaties
• Impeachment of Judges and the President
• Judicial Review

CONCLUSION:

Individually, have the students respond to the following writing prompt:

• How effective are checks and balances in preventing one branch from gaining too much power?

EXTENSION ACTIVITIES:

Argumentative Essay Free Response Question- Respond to this writing prompt presented in the style of the Argumentative Question component of the redesigned AP Government and Politics exam.

Concept Map- Draw a concept map showing the different checks and balances that each of the three branches have.

What-If- Pick one check that a branch of government has over another. Imagine what would happen if the check over that branch did not exist. Explain the potential consequences of not having that in place.

Additional writing prompts-

• Which example of checks and balances is most important? Explain your arguments.
• Which branch (if any) do you think is the weakest? Explain your answer.

Additional Resources

• Lesson Plan: The Constitutional Role of the Federal Court System
• Lesson Plan: The Powers of Congress
• Lesson Plan: The Powers of the President
• Lesson Plan: Federalism in the United States
• Branches Of Government
• Citizenship Rights
• Confirmation
• Constitution
• House Of Representatives
• Marbury V. Madison
• Negotiations
• Separation Of Powers
• Supreme Court

Home — Essay Samples — Law, Crime & Punishment — Constitution — The Constitution’s Checks and Balances

The Constitution’s Checks and Balances

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Introduction of Separation of Power and Checks and Balances in the UK

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Oregon Review of International Law, Vol. 5, 2003

William Worster

This essay will argue that the constitution of the United Kingdom is converging with that of the United States and other countries in terms of judicial review and the separation of powers. This is due partly to waning deference to Parliament by the courts, but most significantly by the enactment of the Human Rights Act 1998 (HRA). When the new separation of powers in the U.K. is compared to that of the U.S., especially by applying judicial review reasoning, the change in the British Constitution by the HRA can more clearly be seen. Beginning in antiquity first, this essay will address the foundations of the political system in England, and discuss the early development of the idea of judicial review of parliamentary legislation. Several elements emerge from this historical inquiry: the nature of the unitary political system and the very political basis of the constitution. Then this essay will move to the U.S. where judicial review flowered, to examine Marbury v. Madison and develop the premises within that decision that allowed Chief Justice Marshall to conclude that the court had the power to strike legislation. The Marbury thesis is then coupled with the stare decisis of the common law to produce the judicial review as known in the U.S. Following this interpretation of Marbury and U.S. judicial review principles, this essay will describe the powers of judicial review in the U.K. before the HRA, and after. There will be a specific application of the judicial review reasoning developed in the U.S. to the situation in the U.K. under the HRA. Considering the political nature of the British constitution, this essay will argue that entrenchment of constitutional principles in the British constitution is possible. We will see that the HRA has formed a real possibility of the de facto judicial power to strike legislation. Therefore, in both in the U.S. and in the U.K., the need to have a "modern democratic nation" which balances democratic rule and constitutional principles has resulted in structural arrangements both political and legal, which give much of the ultimate constitutional authority to the judiciary.

Northwestern University law review

Erin Delaney

Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law-based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system. This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illumi...

(2014) UK Supreme Court Review (Cambridge Journal of International and Comparative Law) 111.

Christopher Sargeant

In the United Kingdom and those countries that recognise Elizabeth II as their Queen, there are to be found certain fundamental constitutional principles. One of these is that much of the legal basis of executive power derives from the Crown, though this has, in the past, often been downplayed for political and other reasons. Indeed, in the Commonwealth as a whole, political independence has often been equated with the reduction of the role of the Crown to a position of subservience to the political executive. What remains important is the position of the Crown as an organising principle of government (the framework upon which the structure of government is built ), as a source of legitimacy, and as a symbol for permanent government. Executive power, therefore, remains based on the royal prerogative, and the ‘third source’ of authority (the legal powers of the legal natural person, as the Crown is a corporation aggregate), as well as upon statute law. The royal prerogative is the residue of royal power which derives from the ancient rights, privileges and powers of the Sovereign, including the prerogative of mercy, political prerogatives such as declaring war or peace, and financial prerogatives such as bona vacantia. Within the scope of the royal prerogative, the Sovereign once had a comparatively free hand to act. Yet even these powers are now limited by the legal concept of convention, and, more recently, by the principles of administrative law. The Sovereign enjoys certain powers, but these are to be exercised (for the most part) by Ministers responsible to Parliament, rather than by the Sovereign personally, without, however, prior authorisation – or subsequent validation – by Parliament. The idea that the prerogative is an uncomfortable fit with the supremacy of Parliament, and the rule of law, weakens its position (as does other factors), for it was seen as something of an enigma, or even a black hole. The very survival of the prerogative is now questioned in some quarters, though whether the curtailment of the prerogative results in its eventual extinction is a moot question – as is the question of whether this would be a desirable outcome.

Kate Malleson

Supreme Court Yearbook

Stephen Laws

Legal Studies

Alan Paterson

Of the four Consultation Papers produced by the Department for Constitutional Affairs over the summer of 2003, in many ways the most interesting was Constitutional Reform: A Supreme Court for the United Kingdom, not just for what it did say, but also for what it did not. For example, respondents were not asked whether the Government should replace the House of Lords with a Supreme Court or not. That was taken as a given. Yet the omission was all the more curious in the light of the fact, as subsequently became clear, that at least half of the current Law Lords do not favour the introduction of a Supreme Court.

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