The Necessity For Checks And Balances: Part 2
Kathleen Wells - So, unlike the American progressives, the framers of the Constitution are not utopians, they are not dreamers about human nature as this is what the framers learned in the 1780s. Human nature is always going to be a mix of good and bad as well as reason and passion. The good part of human nature justifies government by the consent of the governed. However, the bad part of human nature, the lower nature, the passions taught the framers that there is a need for limits on government. The rule of the majority simply has to be structured in the right way, and channeled in the right way. The first lesson they learned was the necessity for a firmer union or the necessity for the state governments to be within a firmer structure of a union in order for these lower and higher levels of human nature to be handled properly. And the second lesson was that there was a necessity for the structure of the government to have checks and balances through a separation of powers. We got the consent part right but we haven’t got the secure the natural rights of everybody correct, yet.
Consent is essential for a just government but not self-sufficient because people are capable of consenting to unjust laws. For example, the Jim Crow laws and vaccine mandates both stem from the Political Left's unbridled passions.
Jefferson lamented that all of the natural rights that the Founders talked about were in potential conflict with one another. The most famous example of this is slavery. The slaves had a right to liberty and the masters had a right to life. One of the point’s that Jefferson made when he discussed why we don’t have immediate emancipation is that he said, we are afraid. He says we have the wolf by the ears. Justice on one end of scale and self-preservation on the other are both natural rights. For example, the right to liberty and the right to life/survival. There was only one way to reconcile that is to try to find a way to liberate the slaves in a way that is not dangerous to the existing population and Jefferson professed himself ready for that. Yet, some criticized Jefferson for not doing enough. The Founders recognized their duty to free the slave and struggled with establishing the union.
The Founders believed that government should be concerned with some character of their citizens. This involved the disposition of the heart and a disposition to act in a certain manner. You cannot have a free country unless the people are well behaved. The Founders understood that the government had a duty to promote some basic minimal moral expectations of people if they are going to be responsible citizens of a free society. Not just the virtues we tend to think today like not harming others or moderation or justice, but the Founders wanted the government to promote the deeper virtues such as courage, vigilance against potential government oppression, and prudence. Not that they expected everyone to have those tougher virtues, but they thought those who possess those characteristics and virtues, should be encouraged.
We are told government should not enforce morality? Then look at the morality the government did advance and see the impact on American families today. The Founders would have said that is naive not to uphold morality. You must have citizens who are willing to restrain themselves and you have to have people who are willing to fight for freedom when it is threatened. Today, an argument centers around abortion. Today’s citizens can’t restrain themselves of sexual relations, except in marriage — are the citizens today too reliant on their lower nature?
Lesson 2: The Necessity for Checks And Balances
9th Federalist Paper
The Ninth Federalist Paper addresses three key points of the American Original Intent:
1) Lessons from the history of democratic government.
2) The distinction between direct government and a republic.
3) Separation of power and how that is crucial to a republican government.
Given human nature, consent can go awry. For example, sometimes people can consent to things that are unjust, things that may undermine natural rights, or are opposed to securing natural rights as we have observed with slavery.
How do we allow consent while also preserving rights? There is nothing new about democratic governments as they have been around for a long time. Go back to Ancient Greece and consider Federalist Paper 9. Hamilton and Madison used the word Publius when writing the papers. This Publius states that the reason we haven’t had a lot of democratic governments up until now is that they have not performed well. Looking back at history, the American framers could see that those against democracies had ammunition because things were unstable. Publius argues that the remedy lies in not repeating the style of democratic government from the past. If America is going to have the same structure of democratic government from the past, then America will get the same results and the forefathers did not want those results. Thus, the burden is on those who want self-governance to prove that it can go in a way that will not undermine stability and the rights of the citizens.
The challenge is that majority factions can become the tyranny of the majority and the many who rule can rule in a despotic way. This is not a license for the Left to advance their cause that promotes the minority at the expense of the majority, where it is okay to tread on the majority rights to advance the minority rights.
The Constitution is designed to help us deal with the effects of factions by both facilitating the consent of the governed and to make sure the consent is channeled the right way. The electoral college is an example that prevents major population centers from controlling the country.
So Federalist Paper 9 tells us what is going to be different, with the contemporary attempt at a democratic government. We have learned some things about the government that the ancients didn’t know. The forefathers expanded upon democracies viewing human nature as a constant, and that humans are fundamentally corrupt. Thus, the framework for the Constitutional government they aspired towards included:
Regular distribution of power into distinct departments (what we call separation of powers).
The introduction of legislative balances and checks.
The institution of courts is composed of judges holding their offices during good behavior.
The representation in the legislature by deputies of their own election.
In more concise terms:
Separation of Powers.
Checks and Balances.
Independent Judiciary.
Representation.
These are the four features of the American Republic that are different from classical republics. Publius in the Federalist Papers summarizes that “…these four changes are the means and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided” (Hamilton, Federalist 9). The end is the same: self-government. The means: majority rule has to be structured through institutions.
What is the excellency (virtue) of the republican government or what is good about it that we want to keep it? It is republican or self-government and the people live under laws to which they have consented. What are the imperfections that we want to lessen or avoid? It is factions and the tendency of human nature to use power sometimes contrary to its own good. So, these main features of the Constitution are the way in which America is going to have both consent and protection for rights that need to be reconciled.
Federalist Paper #10
A faction is a part of the population, that is often motivated by a passion for a cause such as pro-abortion advocates. Factions sometimes want to do something adverse to the rights of the citizens. Madison argues in Federalist 10 that there are two ways to deal with factions:
We can eliminate their causes altogether by destroying the liberty which is essential to its existence.
OR
Give every citizen the same opinions, the same passions, and the same interests.
Madison concludes that the latent causes of faction are sewn into the nature of man, i.e., if you are going to deal with the government, you are going to deal with man. Thus, Madison asserted that what was left was to control the effects of factions. There are two forms of democracy that the forefathers considered:
Direct democracy is the historical form that has a small number of people who show up and participate directly in government.
The Republic, representative democracy, which the Federalists proposed and is a new idea.
How does a Republic differ from a direct democracy? First, the Republic is a delegation in the government of a small number of citizens elected by the rest. Secondly, the greater number of citizens and the greater sphere of the country over which the latter may be extended. Madison argues that the representative process, decisions made by the institution, as opposed to direct democracy, is more consistent with the public good or at least more pronounced as this allows the higher element, i.e. a reason to emerge.
The idea of the representative process is to do something to allow the public reason to emerge or the higher element of human nature while controlling and suppressing the lower element of human nature or the passions.
The representative process works this way because there is an effect to slow changes over time. The enemy is passion and the desire to rush results. We want to filter out the passion and people to think calmly and coolly. We can all think of instances where we reacted in a brash manner that we later regretted. But later, after time to reflect and think about it, we realize we would have acted differently. I’m sure those in prison can relate heavily to this idea. Think about when a friend intervened and suggests you wait a bit before reacting. The friend suggests sleeping on it a bit and taking time to reflect before making a rash decision. Who doesn’t appreciate that friend?
The representative process gives people more time for calm and sedate reflection as that is what governing through an institution does. It makes sure that the people and citizens get their way but only rationally, through reason.
The representative process allows for an extended territory, like America, with a diversity of views, opinions, and interests to bring more people to the governance dialogue. Madison points out that one of the great advantages, with an extended territory and having a representative institution is that you can bring in a diversity of interest and opinions with a lot of checks and balancing on the different interests. For any single interest to rise to the top, that interest has to be an idea that is more common amongst a lot of different people. The idea cannot just be something that is in the interest of one small narrow group. The idea has to be something that transcends divisions and something that over time a lot of different people see as the right thing to do.
Therefore, Federalist 9 and 10 together helps us to understand the argument for the Constitution's design with both laying out a broad framework for what the Constitution is doing. The key advantage of a republic is representation. So how do institutions represent the people? There are three institutions in the American Constitution that share power:
Legislative
Executive
Judiciary
The people govern themselves through all three of these institutions that help us consent. These three institutions relate to one another and come together through the separation of power system and through the checks and balances between the different institutions. How does the separation of power work? What’s the logic behind it? Again, we start with certain assumptions about human nature.
Federalist 51
“What is government but the greatest of all reflections on human nature.”
In this paper, the authors are trying to think realistically about how human beings in government are going to behave and do not think as an ideologue or utopian about their treatment of human nature.
The first truth to realize is that human beings in government are going to behave like human beings outside of government. Madison realizes this in 51 and says let’s not put that aside, but let’s put that knowledge about human beings' nature to use. Let’s take these basics about human nature and put it to our advantage. Ambition must be used to counteract ambition, for example.
“If 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.”
Thus, this relationship among human beings is going to be the way in which government is kept in check and this is a realistic and sober account of human nature that contributes to the design of these institutions. Madison concludes that separation of power and checks and balances are auxiliary precautions. They are not the main way in which we keep our liberty, however, they help us.
The primary check on the government is a dependence on the people, Madison concludes. Therefore, at the end of the day, over the long term, if you don’t have citizens that have the higher part of human nature, you can’t have a republic. It’s not just about understanding the lower part of human nature but also understanding the higher part of human nature, as well.
Federalist 55 ( Madison)
“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust… so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of qualities in a higher degree than any other form.”
So if you have a depraved people, it doesn’t matter if you have a centralized despotism because those people aren’t going to rule. However, that’s not America, we have a government by consent therefore, the character of the people matter. The people must aspire towards a more perfect union because we are not perfect. I think we are trying even though we take steps backward and even sidestep. What has to prevail is the American spirit.