Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
August 2019
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  • Checks and Balances

    The delegates to the Philadelphia Convention of 1787 were very concerned, nearly to the level of paranoia, about putting too much power in one place—other than that power placed in the people themselves.  The easiest way to diffuse power was to place it in many hands and provide for checks and balances in the written Constitution.  “Checks and balances” is a generic phrase for the Constitution’s safeguards.  The Constitution’s checks include in no particular order:

    • Framers separated executive, legislative, and judicial powers.
    • Framers provided for frequent elections by the people.  The people were considered to be the ultimate safeguard for liberty.  Frequent elections were needed for rotation in order to return political leaders back to private life when necessary.
    • Senators were appointed by the state legislatures.  This gave the states a sort of agency to the national legislature. (But see the Seventeenth Amendment).
    • Each state had an equal number of senators notwithstanding its size, influence, commercial position, or status concerning slavery.  This was the foremost compromise that allowed the Framers to agree to the Constitution.
    • Contrary to the manner of voting in the Senate, the House of Representatives is apportioned on the population of the particular state.  This principle of representative equality gives the states with a larger population more representatives in the House.
    • In addition to their state oaths, Framers required officers and legislators to swear an oath to uphold the Constitution and federal laws.
    • Laws go through the process of bicameralism, or the process of legislation passing through majorities in both houses.
    • After legislation passes both houses, it is presented to the president who has the ability to veto the legislation.
    • Congress can override the presidential veto with a two-thirds majority vote in both houses.
    • Senate terms extend six years for more stability.
    • House terms extend two years to represent more immediate interests.
    • Senate terms are staggered into thirds to retain balance between current senators and new senators.
    • Federal officers are impeachable for treason, bribery, high crimes, and misdemeanors.
    • Under the Supremacy Clause, state and federal judges, bound by oath, have the power to negative state laws repugnant to the Constitution, to federal laws, or to national treaties.
    • Term Limits
    • Senate confirmation is needed for many presidential appointments.
    • The electoral college
    • Judges have an inherent power of judicial review to strike down laws in violation of the Constitution.  See Supremacy Clause for discussion.

    As you can see, most of the Constitution’s language can be framed as a check against some potential area of abuse.  Many of the Constitution’s checks can be found in the state constitutions of 1776 and thereafter.

    In adopting the Constitution, the Framers had a wealth of examples to choose from.  In many cases, the adopted check was a process nurtured in England over the centuries and found to some degree in the English Constitution.   Much of the English Constitution can be mapped as a series of negotiations between the king and the subjects—memorialized through charters and declarations.

    Victories against the king’s prerogative were hard fought.  In the seventeenth century, the Commons were mostly successful in championing the “freeborn liberty of Englishmen,” a liberty against the king’s prerogative, especially the king’s power to establish monopolies.  After the Glorious Revolution, English subjects required the new king and queen to swear to uphold a bill of rights.  The English Bill of Rights is one of a long generation of such declarations, petitions, and charters.

    As Englishmen, the concept of declarations and bills of rights transplanted to the colonies.  The colonial concept of “privileges and immunities of Englishmen,” a type of half-derivative of the “liberty of Englishmen,” led our pre-Revolution grievances.  Shortly after the Stamp Act crisis, just prior to Independence, members of the Continental Congress again described the controversies facing the colonies in the October 14, 1774 Declaration and Resolves.  With the Declaration of Independence, we too threw off authority in favor of self-government.  In a republican form of government, sovereignty and republican liberty rest with the people.  The Constitution’s concept of “checks and balances” became the people’s new safeguard—replacing what natural law and “freeborn privileges and immunities of Englishmen” were to unrepresented American colonists under Parliament and the king.

    Liberty has a formidable enemy on each hand; on one there is tyranny, on the other licentiousness. In order to guard against the latter, proper powers ought to be given to government; in order to guard against the former, those powers ought to be properly distributed.[1]

    James Bowdoin discussed the Constitution’s checks and balances before the Massachusetts’s ratifying convention.

    There have been many objections offered against the Constitution; and of these the one most strongly urged has been, the great power vested in Congress. On this subject, I beg leave to make a few general observations, which ought to be attended to, as being applicable to every branch of that power.

    It may, therefore, be observed, that the investiture of such power, so far from being an objection, is a most cogent reason for accepting the Constitution. The power of Congress, both in the legislative and executive line, is the power of the people, collected through a certain medium, to a focal point, at all times ready to be exerted for the general benefit, according as circumstances or exigencies may require. If you diminish or annihilate it, you diminish or annihilate the means of your own safety and prosperity. . . .

    It will be, and has been said, this great power may be abused, and, instead of protecting, may be employed by Congress in oppressing, their constituents. A possibility of abuse, as it may be affirmed of all delegated power whatever, is by itself no sufficient reason for withholding the delegation. If it were a sufficient one, no power could be delegated; nor could government of any sort subsist. The possibility, however, should make us careful, that, in all delegations of importance, like the one contained in the proposed Constitution, there should be such checks provided as would not frustrate the end and intention of delegating the power, but would, as far as it could be safely done, prevent the abuse of it; and such checks are provided in the Constitution. . . .

    The two capital departments of government, the legislative and executive, in which the delegated power resides, consisting of the President, Vice-President, Senate and Representatives, are directly, and by the respective legislatures and delegates, chosen by the people.

    The President, and also the Vice-President, when acting as President, before they enter on the execution of the office, shall each “solemnly swear or affirm, that he will faithfully execute the office of President of the United States, and will, to the best of his ability, preserve, protect, and defend, the Constitution of the United States.”

    “The senators and representatives before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution.”

    “The President and Vice-President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors.”

    “No senator or representative shall, during the time for which he was elected, be appointed to any civil office, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house, during his continuance in office.”

    “No title of nobility shall be granted by the United States, or by any particular state; and no person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

    “The United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion and domestic violence.”

    To these great checks may be added several other very essential ones, as, the negative which each house has upon the acts of the other; the disapproving power of the President, which subjects those acts to a revision by the two houses, and to a final negative, unless two thirds of each house shall agree to pass the returned acts, notwithstanding the President’s objections; the printing the journals of each house, containing their joint and respective proceedings; and the publishing, from time to time, a regular statement and account of receipts and expenditures of all public money, none of which shall be drawn from the treasury but in consequence of appropriations made by law.

    All these checks and precautions, provided in the Constitution, must, in a great measure, prevent an abuse of power, at least in all flagrant instances, even if Congress should consist wholly of men who were guided by no other principle than their own interest. Under the influence of such checks, this would compel them to a conduct which, in the general, would answer the intention of the Constitution. But the presumption is,—and, if the people duly attend to the objects of their choice, it would be realized,—that the President of the United States and the members of Congress would, for the most part, be men, not only of ability, but of a good moral character; in which case, an abuse of power is not to be apprehended, nor any error in the government, but such as every human institution is subject to.

    There is a further guard against the abuse of power, which, though not expressed, is strongly implied in the federal Constitution, and, indeed, in the constitution of every government founded on the principles of equal liberty; and that is, that those who make the laws, and particularly laws for the levying of taxes, do, in common with their fellow-citizens, fall within the power and operation of those laws.

    As, then, the individuals in Congress will all share in the burdens they impose, and be personally affected by the good or bad laws they make for the Union, they will be under the strongest motives of interest to lay the lightest burdens possible, and to make the best laws, or such laws as shall not unnecessarily affect either the property or the personal rights of their fellow-citizens.

    The Constitution, frequent elections, and the ability to repeal and annul legislation substituted for the long line of English declarations of rights, which many Federalists understood to no longer be necessary.  Bills of rights were necessary in England because liberties and justice came from the king.  Our system of republican liberty differed greatly from England with its king and House of Lords.

     For, let us enquire, does representation pervade the constitution of [Great Britain]? No. Is it either immediately or remotely the source of the executive power? No. For it is not any part of the British constitution, as practiced at this time, that the king derives his authority from the people. Formerly that authority was claimed by hereditary or divine right; and even at the revolution, when the government was essentially improved, no other principle was recognized but that of an original contract between the sovereign and the people—a contract which rather excludes than implies the doctrine of representation. Again, is the judicial system of England grounded on representation? No. For the judges are appointed by the king, and he, as we have already observed, derives not his majesty or power from the people. Lastly, then, let us review the legislative body of that nation, and even there, though we find representation operating as a check, it cannot be considered as a pervading principle. The lords, acting with hereditary right, or under an authority immediately communicated by regal prerogative, are not the representatives of the people, and yet they, as well as the sovereign, possess a negative power in the paramount business of legislation. Thus the vital principle of the British constitution is confined to a narrow corner, and the world has left to America the glory and happiness of forming a government where representation shall at once supply the basis and the cement of the superstructure. For representation, Sir, is the true chain between the people and those to whom they entrust the administration of the government; and though it may consist of many links, its strength and brightness never should be impaired.[2]


    [1] James Wilson November 28, 1787.

    [2] James Wilson, November 24, 1787.

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