The Online Library of Liberty

A project of Liberty Fund, Inc.

• United States Prefatory Note
• Chapter XXXVIII: The Beginnings of Democracy In North America
• Chapter XXXIX: The Frame of Government : State, Local, and Federal Constitutions
• Chapter Xl: the Party System
• Chapter Xli: the Actual Working of the National and State Governments
• Chapter Xlii: the State Governments In Their Working
• Chapter Xliii: the Judiciary and Civil Order
• Chapter Xliv: Public Opinion
• Chapter Xlv: Recent Reforming Movements
• Australia
• Chapter Xlvi: Australian History and Frame of Government
• Chapter Xlvii: Australian Legislatures and Executives
• Chapter Xlviii: the Executive and the Civil Service
• Chapter Xlix: Australian Parties and Policies
• Chapter L: Questions Now Before the Australian People
• Chapter Li: Labour Policies and Proposals
• Chapter Lii: Characteristics of Australian Democracy
• New Zealand
• Chaptee Liii: the Country and Its First Half Century of History
• Chapter Liv: Richard Seddon and His Policies
• Chapter Lv: Compuisoby Aebiteation In Tbade Disputes
• Chapter Lvi: the Working of the Government
• Chapter Lvii: Results of Democratic Government
• Part Iii
• Chapter Lviii: the Decline of Legislatures
• Chapter Lix: the Pathology of Legislatures
• Chapter Lx: the Executive In a Democracy
• Chapter Lxi: Democracy and Foreign Policy 1
• Chapter Lxii: the Judiciary
• Chapter Lxiii: Checks and Balances
• Chapter Lxiv: Second Chambers
• Chapter Lxv: Direct Legislation By the People
• Chapter Lxvi: the Relation of Central to Local Government
• Chapter Lxvii: Comparison of the Six Democratic Governments Examined
• Chapter Lxviii: Types of Democratic Government
• Chapter Lxix: the Money Power In Politics
• Chapter Lxx: Responsibility
• Chapter Lxxi: Democracy and the Backward Races
• Chapter Lxxii: the Relation of Democracy to Letters and Arts
• Chapter Lxxiii: the Results Democratic Government Has Given
• Chapter Lxxiv: Democracy Compared With Other Forms of Government
• Chapter Lxxv: Oligarchies Within Democracies
• Chapter Lxxvi: Leadership In a Democracy
• Chapter Lxxvii: the Later Phases of Democracy
• Chapter Lxxviii: Present Tendencies In Democracies
• Chapter Lxxix: Democracy and the Communist State
• Chapter Lxxx: the Future of Democracy

CHAPTER LXIII

checks and balances

That a majority is always right, i.e. that every decision it arrives at by voting is wise, not even the most fervent democrat has ever maintained, seeing that popular government consists in the constant effort of a minority to turn itself by methods of persuasion into a majority which will then reverse the action or modify the decisions of the former majority. Least of all do revolutionaries respect majorities, for they always justify, even in governments based on universal suffrage, the use of force to overthrow what a representative assembly may have decided, declaring that once the admirable result of their action has been seen it will secure general approval. Every people that has tried to govern itself has accordingly recognized the need for precautions against the errors it may commit, be they injurious to the interests of the State as a whole or in the disregard of those natural or primordial rights Which belong to individual citizens. Some sort of safeguard is required. A majority may be very small, or be uninstructed on the particular matter that comes before it, or deceived by those who speak to it, or be under the influence of temporary passion; and whether the action of the majority be directly given by popular vote, or proceed from a representative assembly, a majority vote may fail to express the best will of the people, who may regret to-morrow what was done to-day and blame the ignorance or the passion that misled them or their representatives. Nevertheless, the will of the majority must somehow prevail in the long run, for the acceptance of its decision is the only alternative to an appeal to force. Hence the problem arises: What can be done, while respecting the principle of majority rule, to safeguard the people against the consequences of their own ignorance or impetuosity? History records many a decision whose deplorable results might have been avoided had there been more knowledge, more time for reflection, more opportunity for reconsideration.

The annals of democratic governments largely consist in an account of the various expedients resorted to for this purpose. These have taken two general forms. One is the constitutional restriction of the powers either of a Primary or of a Representative Assembly by imposing on its action certain restrictions which it cannot infringe without transgressing the Constitution, such as directing certain delays to be interposed or certain formalities to be observed before a decision becomes final, or by prescribing a certain majority as necessary for specially important decisions, or, in the case of a representative assembly, by excluding certain subjects from the range of its functions. The other form is by a division of the whole power of the people, entrusting part of it to one, part to another authority. This may take place by making the Executive independent of the Legislature, or by setting up over against the Legislative Assembly (whether Primary or Representative) some other authority, a person or a body whose concurrence is to be required if the action of the Assembly is to have legal effect. The former of these modes may be called that of Checks, the latter that of Balances, each of the two authorities acting as a counterpoise to the other. Twenty-four centuries ago the ancient republics tried both plans, and their experiments have still an interest. The Greeks relied chiefly on Checks, the Romans chiefly on Balances.

In most of the Greek democracies the popular Assembly of the whole body of citizens, exerting a wider sway than belongs to any single body in modern republics, brooked no rival. Unwilling to restrict its powers, the Greeks devised other safeguards. One was the setting apart from the ordinary expressions of their will on current matters certain enactments passed in a specially provided way as being “Laws of the City,” not to be changed except in the same special way, and so coming near to what moderns would call a Rigid Constitution. They could not give due legal protection to the peculiar character of permanence which they desired these Laws to bear, because there was no means of preventing the Assembly from doing what it pleased; and when it passed a “Decree” inconsistent with a “Law” no one could call it to account nor with impunity disregard the “Decree” on the ground that it had, or that he believed it had, transgressed the “Law.” But as the sanction which protected the “Laws” was moral rather than legal, not invalidating the decree, though furnishing a ground for arguing that the decree should not be passed, the Athenians devised two methods for rendering more difficult a transgression of the enactments meant to be specially respected. One was to threaten with a penalty any citizen who should propose to repeal them. This had a certain awe-inspiring influence, but could of course be got round by first repealing the law which imposed the penalty and then proceeding to propose a repeal of the law that had been so entrenched against attack. The other and more ingenious plan was to permit a criminal process to be instituted by any citizen against the person who had induced the Assembly to violate the Law, much as in the seventeenth century in England a minister who had led the Crown into pernicious courses by giving it bad advice could be impeached and punished, or, to use a more familiar illustration, just as in some States of the American Union a saloon-keeper who had supplied to a customer the liquor that intoxicated him could be sued for damages by a person whose property the intoxicated customer had injured. This possibility of prosecution for wilfully misleading the people seems to have had a deterrent effect upon Athenian demagogues.1

The Romans, also unwilling to restrict the powers either of their supreme legislative body, the Comitia, or of their chief executive magistrates, or not knowing how to do so, resorted to the method of Balances, and worked their government by a number of authorities each set over against the other. Wide powers, deemed needed in a State that was always at war, were left to the magistrates, while other authorities were provided who might prevent the abuse of those powers in civil affairs. The Senate balanced the Consuls, the two Consuls balanced one another, the Tribunes by their veto power balanced all the higher magistrates. The Assembly itself could be arrested in its action not only by the Tribunes but by one Consul, for a quaint survival of ancient superstition permitted a Consul to send a message to the Assembly, when summoned at the call of his colleague or of a Tribune, announcing that he was watching the sky 1 for birds that might give omens, favourable or the reverse, to the Assembly. In this case the Assembly could not meet, and its meeting might be delayed from day to day while the piously obstructive Consul continued the search for cheering omens.

The United States has rivalled Rome in the pains taken to divide and subdivide power among various authorities and in the variety of the restrictions imposed upon most of them. The functions of government have been divided into the Legislative, Executive, and Judicial departments. The two branches of the Legislature, the Senate and the House, are balanced against one another, and limited by the veto of the Executive. The Executive is limited by the right of the Senate to disapprove his public service appointments and disallow treaties made by him, while the Judiciary as the interpreter of the Constitution has the function of declaring void any action of the other departments of Government which transgresses the will of the people as set forth in the Constitution. The ultimate fountain of power, Popular Sovereignty, always flows full and strong, welling up from its deep source, but it is thereafter diverted into many channels, each of which is so confined by skilfully constructed embankments that it cannot overflow, the watchful hand of the Judiciary being ready to mend the bank at any point where the stream threatens to break through.

The only checks which France and England and New Zealand have provided are to be found in the existence of Second Chambers, and will be mentioned in the chapter next following.

Without setting forth in detail the methods adopted in other countries, I may proceed to classify the precautions against hasty action under four heads. The first, that of rules regulating the procedure of legislative assemblies, is open to the objection that rules prescribed by the legislature itself, can be by it, if a sovereign body, repealed at its pleasure, destroying thereby the security they seemed to promise. If therefore they are to be effective, they must be placed out of its reach by being included in a Constitutional Instrument which the legislature cannot alter.

A second form of restriction consists in withdrawing from the competence of a legislature certain classes of subjects, reserving these for the direct action of the people themselves, so that if the representative legislature attempts to deal with them, its acts are legally null and void. The outstanding instances of this plan are found in provisions of the Federal Constitution and State Constitutions of the American Union, which reserve many matters for direct action by the people in the form of Constitutional amendments. The defects of this method are that it may prevent the passing of a measure urgently required, for the process of amending the Constitution is inevitably slow, and that it raises questions as to the validity of a law which cannot be promptly settled, for when it is doubtful whether a legislature has exceeded its powers, the question of validity must remain unsettled till decided by the Courts. Thus the legislature is hampered by doubts as to its powers, while the citizen may be embarrassed by not knowing whether or not to obey the challenged law. Despite these inconveniences, the system continues to find favour in America, where it has prevented much unwise action by the legislatures. It is also used in Australia and Canada and in Switzerland, though to a less extent, since neither the Confederation nor the Cantons distrust their representatives as the citizens do in many American States.

Thirdly, some nations have entrusted to the Executive the right of rejecting bills passed by the legislature. This plan, adopted in the American Federation and also in all but one of the several States of the Union, is possible only in those democracies which choose their chief executive magistrate by a popular vote for a comparatively short term of office, so that he, equally with the legislature, holds a direct mandate from the people and is responsible to them. Democratic principles would forbid the vesting of a veto in a hereditary king, or even in a president elected for life. The British Crown virtually parted with its right of dissent from the Houses two centuries ago, though that right has never been extinguished by statute.1 In the United States the veto of the President (in federal legislation) as also that of the State Governor (in State legislation) is valued as curbing the tendency of legislatures to pass faulty measures either from a demagogic purpose to curry favour with some large section of citizens, or at the bidding of powerful business interests which can get at the individual representatives or at the local party leaders who command a majority in the legislature. So largely and so beneficially is it used in the States that the Executive often gains credit with the people by his vetoes, and points, when he seeks re-election, to the list of bad bills which he has killed. The existence of this power has formed in State legislatures the habit of passing, in reliance on the Governor's “lethal chamber,” measures they know to be bad, thus contriving to earn merit with some person, or some section of their constituents, without injury to the general public.

A fourth way of restraining the legislature is found in submitting its acts to popular vote. This is the so-called Referendum, applied in Switzerland both in the Confederation and in the Cantons, and in many American States. It is separately examined in the chapter which deals with Direct Popular Legislation. On the direct action of the people by the Initiative no check is placed, but the instances in which the Swiss have erred in the use of this unlimited power seem to have been extremely few. They are an extraordinary people. The results in America are discussed elsewhere.1

Lastly there is the method of subjecting measures passed by the popular representative assembly to revision or rejection by another legislative body. This is the so-called Second Chamber scheme, preferable to a simple veto because it provides opportunities for a second discussion and possible improvement of a measure. It is so extensively used in democracies as to demand treatment in a separate chapter.

It is interesting to observe that in some of the countries mentioned the checks and balances which exist, or have existed, were not devised as safeguards, but were incident to the process of transition from monarchy or oligarchy to democracy, the old powers exercised by the Few being allowed to subsist in a reduced form side by side with the new powers conceded to the Many. This was the origin of the English House of Lords, now acting as a Second Chamber, which is a continuation of the ancient Great Council of the Nation (Magnum Concilium) whence the representative House of Commons was evolved, as a section thereof, in the thirteenth century.1 So the Second Chamber of Sweden survives as one of the old Four Chambers of the Four Orders (nobles, clergy, burgesses, and peasants) which had lasted down to our own time. Most of the Senates in modern countries have been deliberately contrived as checks on the popular House, in imitation of ancient Rome or of England. The veto of the President and the State Governor in the United States was suggested by the power, already disused long before 1787, which had formerly belonged to the British Crown. The restrictions on legislative action contained in American Constitutions were new, but they arose naturally as involved in the creation of Rigid Constitutions and along with the arrangements of a Federal system which allotted certain powers to the National Government while leaving others to the several States.

The need for safeguards against imprudent action in a democracy, and the practical utility of such safeguards in any particular case, depends largely on the character of each people. As there are individual men so impatient or impulsive that they do well to make it their rule never to post a letter written in anger till they have shown it to a judicious adviser or re-read it after twelve hours, while there are others whose coolness or caution renders such a rule superfluous, so likewise there are peoples, such as the Swiss, who can dispense with some of the safeguards others have found needful.

How to find a means of restraining the hasty impulses either of the whole people in a primary assembly or of a representative legislature has always been a difficult problem, because a balance has to be struck between the need for caution on the one hand and the need for promptitude on the other. Checks may work ill by giving too much weight to minorities, or by retarding action when speed is essential. Delays and obstacles placed in the way of the majority's will may tend to exasperation, and exasperation may induce violence or even revolution. The United States has gone farther than any other popular government in limiting and balancing the powers of each organ of government, and has doubtless escaped thereby some dangers while suffering some inconveniences. Britain and the British self-governing Dominions have followed a different path, and provide, except to some small extent in the Constitutions of Australia and Canada, few effective checks.1 No one thought of imposing restrictions on the House of Commons. Having won popular favour by extorting freedom from the Crown, it was allowed to reach a power with which it has never been willing to part, though the conditions of England have made its legal omnipotence a very different thing from what that was eighty years ago.

Though experience shows that no nation has ever been cool enough and wise enough to dispense with some restraint on its own impulses, the tide of fatalistic faith in the sovereignty of the people tends in nearly every country to sweep away such checks as exist, replacing them by no others; and the peoples who most need to be protected against themselves are the least disposed to provide such protection.

Here the spirit of Faith in the people and the spirit of Liberty part company. The former is content to let a majority have its way forthwith. The latter, not denying that in the end the majority must prevail, is concerned to secure for a minority the right of being fully heard, and for the people due opportunities for reflection.

[1]See as to Athens, Vol. I. Chap. XVI., ante.

[1]Servare de coelo was the technical term.

[1]“The term veto” is not constitutionally correct as applied either to the Crown or the House of Lords. Both are technically parts of the same enacting authority, the “ Great Council of the Nation under the King in Parliament assembled.”

[1]See Vol. II. Chapters XLV. and LXV.

[1]Scotland had only one House in its Parliament before the Union, but a committee called the Lords of the Articles acted as a check on the whole body. See the work of Professors Dicey and Rait, Thoughts on the Union between England and Scotland, pp. 14 8qq.

[1]The Second Chambers in Canada, in Australia and its States, and in New Zealand have been described in the chapters relating to those countries. The British Second Chamber can now do no more than delay the passing of a bill (other than financial) till it has been passed in three successive sessions, and until a period of two years from its first passing in the House of Commons has elapsed. In financial bills it has no power at all.