2.5.2 Exercise: Do Checks and Balances Work?
James Madison's system of checks and balances, as outlined in Federalist No. 51, is one
of the greatest achievements of constitutional theory and democratic rule. Madison's system,
even as it endures in a variety of guises as he envisioned, is observed in the modern American
political environment in extreme erosions and accommodations that dilute the effectiveness of
his original design. The federal system of checks and balances is partly functioning as Madison
predicated, successfully precluding absolute despotism by the central government and
maintaining some institutional competitiveness, but it has been severely undermined by the
expansion of executive power, more partisan politics, and the emergence of extra-constitutional
power organizations Madison had no way of anticipating.
Madison's concept of check and balance was rooted in a pragmatically realistic
perception of human ambition and nature. Madison, in Federalist No. 51, described that
"ambition must be made to counteract ambition" due to the fact that humans inherently desire
power and that this desire must be directed to the public interest rather than attempting to
eliminate it (Madison, Federalist No. 51). Madison's plan was founded on the notion that "the
private interest of every individual may be sentinel over the public rights," i.e., that each branch's
institutional self-interest would be an impetus for it to resist intrusions by another (other) branch.
This, in theory, would ensure that the branches would clash and keep each other in check, no
matter who held political office. It was a clever design: not relying on the virtue of leaders, but
instead on their self-interest to guard liberty.
Modern evidence suggests Madison's system is maintaining itself well in a number of
important ways, disclosing the durability of his institutional arrangements. The system ensures
ongoing tension and conflict among the branches, and this continues to take the form of today's
struggles over executive power, judicial review, and legislative authority (Galbraith). Recent
examples include congressional oversight of executive departments, judicial review of executive
actions and legislative acts, and executive veto authority over congressional statutes. The
Supreme Court's role as a check against legislative and executive authority has expanded
dramatically, with the Court often being the voice of last in inter-branch disputes. Legislative
gridlock, though often criticized, can be viewed as a feature—not a flaw—of the system. It slows
down impulsive decision-making and forces cooperation across party lines. Madison’s vertical
division of power—between states and the federal government—also still functions to some
extent, as seen in states challenging federal policies on immigration, healthcare, and the
environment.
But while the structure still exists, several forces have seriously eroded its effectiveness.
One of the most significant changes is the growth of presidential power. Long before recent
administrations, presidents were already acting unilaterally on issues like foreign policy and
trade, often without meaningful congressional input (Marshall). Executive agencies now write
complex regulations that carry the force of law, even though they aren't directly accountable to
voters or Congress (Shane). Meanwhile, political norms that once restrained power have faded,
allowing each new administration to push further than the last. On top of this, extreme
partisanship has thrown Madison’s assumptions into question. Today, many lawmakers prioritize
party loyalty over their branch’s authority. If Congress is controlled by the same party as the
President, members are often more willing to defend the executive than to challenge it.
Additionally, iron triangles—tight-knit relationships among congressional committees, executive
agencies, and special interest groups—create informal power structures that operate outside the
formal system of checks and balances, making real accountability harder to achieve.
Modern challenges to Madison's system cast serious doubts on the future prospects for
democratic America and the need for constitutional adaptations. Despite the system not having
failed in a manner where the whole thing has fallen apart, observations in recent presidencies
indicate decays in the system's built-in checks and balances and a possible future collapse in
future administrations (Calabresi et al.). If not for the dispersal of power Madison established,
the power of tyrannical rule would be that much greater, for absolute centralized authority
corrupts those who hold it absolutely and offers fewer avenues for opposing voices to be heard.
The system's defects must not be allowed to blur its continuing utility in keeping power from
increasing in disproportionate quantities into any single institution or individual. Madison's
system, however, may need to be supplemented by constitutional amending, legislative reform,
or reaffirmation of democratic conventions in order to adapt to modern challenges. Potential
structural reforms could include the augmentation of congressional supervisory power, limiting
executive war and emergency powers, or reforming political finance to reduce the power bases of
special interests. Put simply, Madison's system of checks and balances is a fallible but necessary
check against tyranny, one that requires vigilance and periodic reform in order to more fully
realize its promise in ensuring and protecting American liberty.
