Re-thinking checks, balances

The principle of checks and balances in government has long been held to be a very significant asset to the practice and functioning of government in the United States. Yet, in recent years with the rise of ideologues and extreme partisanship in Congress, one cannot avoid the conclusion that a narrow understanding of checks and balances has become a major contribution to the dysfunction of that body. Proposals are checked and counter-checked, and one man's idea of balance is anathema to another. In place of finding compromise, both sides dig in their heels with the result, as we have seen over the fiscal cliff debacle, that there is little or no progress until the very last minute and Congress falls ever lower in public esteem.

The concept can be tracked back to the Federalist Papers of 1788, in particular Federalist paper No. 51, by James Madison which was entitled "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments." In that paper, the term 'Departments' referred to the executive, the legislative and the judicial authorities which, federally speaking, meant the Presidency, the Congress and the Supreme Court.

Deliberately, the president does not have authoritarian power, and the function of the Supreme Court is to interpret the law, not to make it.

Madison, emphasizing the importance of protecting the minority from the tyranny of the majority, set out the need to have limitations and restraints on the powers of the 'Departments' and on those elected or appointed to those bodies.

As Madison said: " . If all men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

This is all well and good, but in the end government has to govern.

To do that, the freedom to express views and articulate deeply held political positions needs to be tempered with a recognition that compromise will be necessary in order to make progress. The former without the latter is no more than a license to prevaricate, to obstruct and to block, as we have seen in the elephantine gavotte in Congress over past months that led to the ridiculous 11th-hour deal-making over the Christmas holidays and New Year's Eve. If it had all happened in a minor banana republic it would have been laughable, but it took place in the world's foremost democratic republic.

Instead of mixing with each other socially while at the same time respecting each other's views, it appears that the current mood in Congress is one of hostility to the other side. Any indication of working together is open to an interpretation of fraternization with the enemy and the threat that big money will be found to unseat the incumbent at the next election and replace him or her with someone whose political loyalty can be totally relied upon. In a negative climate such as this, the current interpretation of the principle of checks and balances becomes a major liability.

In place of obsequiously succumbing to narrow vested interests such as the NRA and gun makers on the right and unions or extreme voices on the left, or pledges given to unelected persons such as Grover Norquist, is it not possible for there to be the formation of a mixed group of sensible Senators and Representatives to meet and set an example of cooperation. This does not mean an abject surrender of political views but simply a readiness to consider working together and in the pursuit of acceptable compromises so that government can function.

In a democratic society an elected representative represents not only those who voted for him or her, but also all the members of his or her constituency. Similarly, in making a functioning Congress, the members have a wider responsibility to the nation as a whole rather than just to those of a similar political ilk.

The Federalist Papers of 215 years ago had, and continue to have, much wisdom and we would do well to take their counsel. To that purpose, here is another excerpt from Madison:

" . Justice is the end (modern meaning - the objective) of government. It is the end of civil society. It ever has been and will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may truly be said to reign as in a state of nature, where the weaker is not secured against the violence of the stronger "

Derek Boothby lives in Manchester and is a former arms control specialist with the United Nations


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