It is often said that our government is broken because the branches do not work well together. The former is false; the latter is correct.
The Framers of the Constitution created an institutional framework designed to thwart tyranny. After all, when delegates were writing the Constitution in Philadelphia in 1787, the tyranny of British rule was still fresh in their minds. The concern of popular tyranny emanating from Shay’s Rebellion added another layer of concern.
Institutional checks are necessary to guard against the self-interested trait of human nature that the Founders believed guided all actions. As James Madison writes in Federalist 51: “If men were angels, no government would be necessary.” This notion of the selfish baseness of human nature is precisely why the Framers adopted the principle of a mixed government, incorporating the political theory of checks and balances.
MANY AMERICANS don’t understand this theory. Simply, it means each branch should try to be, to put it boldly, tyrannical. Each branch seeks to be the dominant branch. This is natural because power, by its nature, seeks more power. Thus, to deny any one branch from becoming tyrannical and destroying the liberties of American citizens, each branch was encouraged to take as much power as it could.
Another quote of Madison’s should suffice as evidence: “Ambition must be made to counteract ambition.” As long as each stakeholder sought to usurp power, which is the defining characteristic of power itself, the government would work.
This principle, of course, means that government works slowly and combatively, and little ought to get done. It works as such to protect liberty. The branches were made to check one another; the government was intended to deny the power of the people; and the people were meant to diminish any chance of governmental control – all by each party trying to dominate the other.
This slow, often misunderstood process is precisely why the government is working well when the Senate and the House of Representatives can’t get anything done, and when the president threatens to veto congressional action, or when the courts strike down unconstitutional laws. Regardless of what pundits and readers may think, this is the government working as designed.
IN FACT, THOMAS Jefferson did not think the Constitution went far enough to deny energy in the government and to enshrine individual liberty. In a letter to Madison, he writes, “I think it would be well to provide in our constitutions that there shall always be a twelvemonth between the engrossing a bill and passing it: that it should then be offered to its passage without changing a word: and that if circumstances should be thought to require a speedier passage, it should take two-thirds of both houses instead of a bare majority.”
Jefferson’s idea here is that in such a system, the only laws that passed would be the most necessary ones. All others, being an overreach of governmental power, would decrease liberty and increase the chances of tyranny.
What does this have to do with contemporary politics?
First, when one branch of government checks the power of another branch, it is doing its job; and this inaction is important for citizens to know as the institutional safeguard meant to preserve liberty.
Second, and controversially, many people have denounced President Obama’s executive action on immigration as presidential overreach. In other words, he went too far in his order to give undocumented residents more rights. Perhaps he did – but he ought to, because the system is designed for him to do that. However, here again, the system worked.
The judicial branch, through a federal judge, blocked key parts of the president’s order. This is the system working. The judicial branch should at all times try to check presidential action when it is too energetic. And if this move is an act of injustice by the judicial branch, then it is up to Congress to resolve the dilemma through statutory law, according to what is in the best interest of the United States. And if Congress fails to do so, then according to the Framers, nothing being done is the correct policy.
THERE ARE TWO main problems with the system continuing to operate properly, however. The first is the party system. Political parties kill the institutional system created in 1787. Parties seek to align the branches and force them to reach accords to promote party interests, not the common interests. When we have a unified government (one party controlling multiple branches of government) chances are the government will be too energetic, and will not be operating to protect liberty.
This is true whether Republicans or Democrats are in charge. Each branch should check the other branches; parties disrupt this by uniting around ideological purposes. In other words, they stop checking other branches if those branches are populated by fellow-travelers. If you don’t believe me here, just ask George Washington.
The second main obstacle to the government working properly is the citizen. For a republic to work properly – which is what we are (the writers of the Constitution feared a democracy) – citizens need to be educated on what the Framers intended. They intended a limited government, slow to action, except in times of dire emergency. But they expected the voter to be well-informed of how the system operates, and for the citizen to become as educated as possible so as to know what is best for the country philosophically, rather than according to one’s ideological commitments.
If the government is broken, it is not the fault of any branch trying to become too powerful; rather, it is the people’s fault for not trying to check that power by preserving liberty against government intrusion. If you disagree, read the Constitutional Debates, the Federalist Papers and founding letters, and respond. I look forward to an educated conversation.
(The writer is an assistant professor of political science at Georgia Regents University.)