In a stirring analysis of the system of checks and balances that was to form the cornerstone of the United States (US) Constitution and government, James Madison underscores how the structure of government must ensure the proper functioning of the system (1788).
He argues that for each particular branch of the government – the legislature, the executive, and the judiciary – to both maintain autonomy and yet be accountable, “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” (Madison 1788).
Two aspects become important here: firstly, each branch of the government had to retain independence of the other two in order to work smoothly and without hindrance; secondly, there was to be as little role in the appointment of the members of one branch by those of another. The natural mode of selection, therefore, becomes popular choice.
However, as Madison notes, given the specific requirements of the members of the judiciary, popular selection may be “inexpedient” (1788). Indeed, judicial positions were determined by the US Constitution to be filled by executive appointment; over time, this has tended to indicate a tacit complicity between the executive and the judiciary, rather than independence. Perhaps, it may have been wiser to allow the executive to forward a list of possible appointees to the judiciary, and popular election would decide who finally receives the appointments.
Madison stressed on the distribution of power among and within the three branches in a such a way that the pulls and pressures of each would satisfactorily balance the other, and government as a whole would pave the way for the pursuit of liberty. He understood that the most important check would come from the people, with a system of control flowing not only from the rulers to the ruled, but also in the reverse direction. Government, thus, would be based on consent with citizens reserving the right to recall.
However, he also advocated a system of “auxiliary controls” that would supply “…by opposite and rival interests, the defect of better motives…where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other–––that the private interest of every individual may be a sentinel over the public rights.” (Madison 1788)
Each branch of government received a source of authority that would abridge any tendency by the others to exercise absolute power. Thus, as the legislature retained both the purse strings of the US and the final word on international treaties, the executive retained control over the armed forces, while the judiciary maintained the right to review legislations and executive actions.
However, in the light of recent history, it must be said that the US presidency has assumed a position of almost unrestrained authority, and the influence of the executive over the other two branches has become a prominent feature of US politics. Madison failed to foresee this; in fact, he thought that the democratic system of governance in the country would make the legislature preeminent (1788).
Madison ends with two important observations. Firstly, he mentions the safeguards for individual liberty arising out of not only the federal constitution but also the state constitutions. Secondly, he cautions against majoritarian tyranny by calling for the development of a ‘societal will’ and the deconstruction of any homogeneous majority through the toleration of diverse practices, views, and beliefs and through “many separate descriptions of citizens” (Madison 1788), a task that still remains incomplete.
Madison, J. (1788) ‘The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.’ The Federalist No. 51. Retrieved 29 April, 2008, from <http://www.constitution.org/fed/federa51.htm>
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