The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

Checks and Balances

The check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution. Like the principle of federalism, it permeates the document. Here is what the Framers did in order to reconcile the principle of separation with the urgent need for a vigorous new government that would exercise some self-control:

(1) They arranged that there should be some overlap of functions among the three major departments of government. In some ways, one department was allowed to touch upon the usual affairs of a different department. Montesquieu had written that no department should exercise “the whole power” of another department, but to exercise some part of the power of another department was permissible. There ought to be no insurmountable wall of separation shutting off executive and judicial branches from the legislative in every respect. Thus in the final version of the Constitution that was submitted for ratification, the President (executive branch) was given a part in the legislative process, through his power of veto and his power to make recommendations in “State of the Nation” addresses to the Congress. On the other hand, the legislative branch, through the Senate, was given some power over the executive branch, in that treaties and presidential appointments to major administrative posts and to the judiciary must be confirmed by the Senate. Likewise, the judiciary was given some executive power to manage its own internal affairs. By the power of judicial review, it might also overturn acts of the legislature deemed unconstitutional.

(2) They improved upon the State constitutions by arranging that the members of the three branches of government should be chosen in three different ways—so making the executive and judicial branches more independent from the legislative. (In the early State constitutions, usually the legislature had appointed and removed State executives and judges.) Under the new Constitution of the United States, members of the House of Representatives would be elected by the voters of geographic districts within the several States; Senators would be elected by their State legislatures; and Presidents would be elected by a College of Electors. Federal judges would be appointed by the President, subject to confirmation by the Senate, and would be appointed for life. By separating personnel as well as functions, the authors of the Constitution sought to prevent the legislative branch from lording over a subordinate executive and a subordinate judiciary.

(3) The Framers provided each department with constitutional means for resisting attempts at domination by the other departments. The President’s “qualified veto” over enactments of the Congress was a protection for the executive branch. Life tenure for judges was a protection for the judicial branch. As an additional device for strengthening the executive and judiciary against the legislature, the Framers arranged that members of the House and Senate would be chosen by different means, and in part at different times. The Congress, for its share, was given the constitutional power of impeaching the executive or members of the judiciary—a grim power inherited from the British Constitution.

(4) It may thus be seen that an elaborate system of checks and balances was woven into the Constitution. These checks and balances were intended to prevent any person or organ of government from interfering with constitutional freedoms or with the lawful functioning of another organ of government. They also help to maintain the separation of powers by arming each branch with a defensive power to resist encroachments from another branch.

These built-in checks upon the power of any person or office in the Federal government are still functioning two centuries after their invention.

To obtain a clearer notion of these several constitutional means for separating powers and providing checks and balances in the Constitution, study the following list of such provisions in the original seven Articles of the Constitution: