Difference between revisions of "Checks and balances" - New World Encyclopedia

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In drafting the [[United States Constitution]], the [[Founding Fathers of the United States|framers]] included features of many novel concepts including hard-learned historical lessons about checks and balances on power and the then-new concept of the separation of powers. Similar concepts were also prominent in the state governments of the United States. As colonies of Britain, the [[founding fathers]] felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.
 
In drafting the [[United States Constitution]], the [[Founding Fathers of the United States|framers]] included features of many novel concepts including hard-learned historical lessons about checks and balances on power and the then-new concept of the separation of powers. Similar concepts were also prominent in the state governments of the United States. As colonies of Britain, the [[founding fathers]] felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.
  
{{Mergesectionto|Separation of powers under the United States Constitution}}
+
The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the voters. There are also judicial prohibitions against certain types of interference in each others' affairs. Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. The accusation of [[judicial activism]] has been levelled at some judges, and that the power of interpretation of law is misused.
<table border="1" class="wikitable">
 
<tr>
 
  <th valign="top">'''Branch'''</th>
 
  <th valign="top">'''Constitutional Powers'''</th>
 
  <th valign="top">'''Executive counterbalance'''</th>
 
  <th valign="top">'''Legislative counterbalance'''</th>
 
  <th valign="top">'''Judicial counterbalance'''</th>
 
</tr>
 
  
<tr>
+
The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness, for fear of security, of the public to sacrifice checks and balances to decisive leadership by the prsident.
  <td valign="top">'''Executive'''<br>([[President of the United States|President]])</td>
 
  <td valign="top">
 
  <ul>
 
    <li> Operational command of government services and contracts
 
    <li> Sole power to wage war (operational command of the military)
 
    <li> Responsibility for negotiating treaties
 
    <li> Power to appoint judges, diplomats, cabinet, and department heads
 
    <li> Police powers of arrest, detainment, and search
 
    <li> Prosecutes crimes
 
    <li> Collects taxes
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Civilian and military chains of command constrain low-level executive officials to obey the policies of high-level non-executive officials.
 
    <li> Extensive bureaucracy limits ability of executive to make extensive changes in operational practices.
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Power to determine what laws exist
 
    <li> Power to write laws to constrain the internal operation of government
 
    <li> Power to write laws limiting searches, arrests, and detentions
 
    <li> Power to make laws concerning what regulations may be declared by the executive
 
    <li> Power to declare war
 
    <li> Responsibility for ratifying treaties (Senate)
 
    <li> Responsibility for confirming executive appointments (Senate)
 
    <li> Power to set the budget of the executive
 
    <li> Power to impeach and remove executive officers (two-thirds majority)
 
    <li> Power to set limits
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Acts as a neutral mediator when the executive brings criminal or civil enforcement actions, and has the power to stop inappropriate enforcement
 
    <li> Issues warrants for searches and arrests
 
    <li> May declare actions of the executive to be illegal and/or unconstitutional
 
    <li> Determines which laws apply to any given case
 
  </ul>
 
  </td>
 
</tr>
 
  
<tr>
+
Although each branch has frequently sought to overstep its power, the separation of powers together with checks and balances has created a relatively stable government since the founding of the republic. The system of checks and balances is to some extent a deterrent because any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.
  <td valign="top">'''Legislative'''<br>([[United States Congress|Congress]])</td>
 
  <td valign="top">
 
  <ul>
 
    <li> Power to write laws
 
    <li> Power to enact taxes, authorize borrowing, and set the budget
 
    <li> Sole power to declare war
 
    <li> Various other powers of the federal government
 
    <li> [[Subpoena]] (investigative) power
 
    <li> Power to confirm Supreme Court judges and Executive cabinet officials
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> May veto laws (but this may be overridden by a two-thirds majority in both houses)
 
    <li> May refuse to enforce certain laws
 
    <li> May refuse to spend money allocated for certain purposes
 
    <li> Sole power to wage war (operational command of the military)
 
    <li> Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders
 
    <li> [[Executive privilege]] (refusal to submit to legislative subpoena)
 
    <li> Use of the [[bully pulpit]] to propose and advocate for laws
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Each house is responsible for policing its own members.
 
    <li> Powers internal to the legislature are split between its two houses, the [[Senate]] and the [[House of Representatives]].  Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees.
 
    <li> Each house can prevent the other from passing any law.
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> May declare laws [[Constitutionality|unconstitutional]] and unenforceable
 
    <li> Determines which laws apply to any given case
 
  </ul>
 
  </td>
 
</tr>
 
  
<tr>
+
However, as [[James Madison]] wrote in [[Federalist Papers|Federalist]] 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action."
  <td valign="top">'''Judicial'''<br>([[Supreme Court of the United States|Supreme Court]])</td>
 
  <td valign="top">
 
  <ul>
 
    <li> Sole power to interpret the law and apply it to particular disputes
 
    <li> Power to determine the disposition of prisoners
 
    <li> Appointed for life
 
    <li> Power to compel testimony and the production of documents
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Responsibility to appoint judges
 
    <li> Power to grant pardons to federal offenders
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> Sole Federal Agency with the power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
 
    <li> Power to determine the size and structure of the courts
 
    <li> Power to determine the budgets of the courts
 
    <li> Responsibility for confirming judicial nominees
 
    <li> Power to impeach and remove judges
 
    <li> Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)
 
  </ul>
 
  </td>
 
  <td valign="top">
 
  <ul>
 
    <li> The appeals process enforces uniform policies in a top-down fashion, but gives  discretion in individual cases to low-level judges (The amount of discretion depends upon the standard of review, determined by the type of case being reviewed.)
 
    <li> May only rule in cases of an actual dispute brought between actual petitioners
 
    <li> Polices its own members
 
  </ul>
 
  </td>
 
</tr>
 
</table>
 
  
====Maintaining balance====
+
===The reason for two houses in the legislature===
 
+
The original intention of having two houses in the legislature, was to balance the interests of the states and the interests of the people. Under the original constitution, state legislators appointed the two senators from each state, while the general population elected representatives. Under this arrangement, the long term interests of the state could be balanced against the immediate wants of the people. No legislation would pass unless it was both (1) good for the state, and (2) good for the people. This check and balance was effectively eliminated by the [[Seventeenth Amendment to the United States Constitution|Seventeenth Amendment]], which also placed election of Senators in the hands of the same interest group as the House of Representatives.
The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public.  There are also judicial prohibitions against certain types of interference in each others' affairs.  (See "separation of powers" cases in the [[List of United States Supreme Court cases]].)  Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. Recently the accusation of [[judicial activism]] has been levelled at some judges, and that the power of interpretation of law is misused.
+
But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.
 
 
The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority.  National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved.  In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic.
 
 
 
The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action.  This is intended to reduce opportunities for tyranny and to increase the general stability of the government.
 
 
 
However, as [[James Madison]] wrote in [[Federalist Papers|Federalist]] 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."  Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action."  (This is one of the arguments against the popular election of Senators, which was instituted by the [[Seventeenth Amendment to the United States Constitution|Seventeenth Amendment]].But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.
 
  
 
====Fourth branch: Independent executive agencies====
 
====Fourth branch: Independent executive agencies====

Revision as of 21:19, 14 August 2006

Checks and balances refers to a mechanism designed to limit power a single individual or body of government, and provide the for the harmonious interrelationship of the people and all of the organs of government or other social institution. Checks and balances are intended to allow legitimate power to govern and good ideas to be implemented, while abuse of power, corruption, and oppression are minimized.

Charles Montesquieu coined the term "checks and balances."

The phrase "checks and balances" was coined by Montesquieu. The actual practice of checks and balances goes back in history much further. In the Ancient Roman Republic, the Roman Senate made up of the wealthy class was checked by the veto power Tribunes, who were charged with protecting the interests of the plebeians. In the Holy Roman Empire the Church became a check against the absolute power of the temporal rulers. The Magna Carta was an agreement by which English Lords were able to check the absolute power of the King. Protestantism served as a check on the monopoly on spiritual power held by the Roman church.

Checks and balances are important for all social institutions, including religious institutions, corporations, NGOs and partnerships. In any of these institutions there is opportunity for one person to use their power to gain something at the expense of another. Financial audits, dual signers on checks, and appointment of CEOs by corporate boards are examples of checks and balances in the non-political sphere.

Modern political theory, beginning with Machiavelli and Hobbes, has sought to understand power, whereas classical political theory concentrated on justice. Montesquieu proposed separation of powers between an executive, a legislature, and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch is also able to place limits on the power exerted by the other branches. The Constitution of the United States was one of the first attempts to design a government based on both an analysis of power and justice.

Checks and balances on power must be vigilantly watched. In the United States, for example, many abuses of power developed historically, some of which have been corrected by law, others which have developed because of changing social conditions the framers of the constitution did not envision, and still others where laws have been changed to allow the unchecked power of a select few to expand. One of the most visible problems is the growth of corporate wealth and its impact on government policy, gradually removing power from the people and placing it in control of an oligarchy.

The general concept of checks and balances

The general concept of checks and balances is based on the observation that many people behave selfishly and seek to enhance their own wealth and power at the expense of others. Lord Acton's quotation, "power corrupts, and absolute power corrupts absolutely" is taken as a truism in political science today. The attempt to abuse one's position of power is not limited to outright use of force, but applies to human relationships throughout all levels of society and in all social organizations from the nuclear family, to cultural instituions, business arrangements, corporations and governments.

In traditional face-to-face communities, where all people live closely together, abuse of power is usually transparent because every member of the society sees what everyone else has and knows how they got it. However, in large-scale and less personal social institutions, like a government, a church, or a corporation, people are less aware of whether each person is performing his job selflessly, or selfishly seeking to enlarge his wealth or power at the expense of others. The attempt to abuse one's position of power is not limited to the outright use of force, but can include tactics to manipulate information or money like secret meetings and documents, bank accounts controlled by a single individual, restricted access to prisoners, passing self-serving laws, controlling information, and other methods of hiding truth or manipulating others.

The majority of the world's people throughout history have lived under the shackles of a rule in which they had very little say. Most kingdoms and political territories have been secured by force of conquest, and people living in that area were subject to the decrees of the ruling family. The classic fairy tale is a dream of marrying the handsome prince, because there was no way to acquire wealth apart from joining the royal family is based on the assumption that absolute power and wealth reside with the king. The regimes of some kings have been benevolent and others tyrannical; it has generally depended on their good will and skill. Ancient democracies, without checks and balances, degenerated into a "tyranny of the majority," so that prominent philosophers like Aristotle and Thomas Aquinas considered democracy to be among the worst forms of government. Modern democracies can provide freedom for citizens and protect rights of minorities because of checks and balances on power.

Checks and balances on power begin with the assumption that any person might abuse power, and that any good leader might turn bad. Therefore measures are established to guarantee all people potentially affected by the decisions of an individual or group have (1) an input in the decision, (2) veto power over the decision, (3) legal protection from injury as a result of the decision.

Input in the decision

In a small group, a leader can simply gather all members of a group together and ask for their opinions about a decision and then try to make the best decision based on all of the facts. In a larger organization, this is accomplished by representation. In a state, representation of the interests of each citizen is necessary for him or her to view the government as legitimate. "Taxation without representation" was a rallying cry for the American revolution. In a economic corporation the financial interests of all stakeholders must be represented to secure their participation. Even in a family decision like an arranged marriage, the future brides or grooms must feel that their parents are representing their best interests.

Veto Power

Veto power is a method used to prevent any legislation that might impact a member of an organization negatively from being enacted. In the United Nations Security Council the five major powers each has a veto power on security operations which would commit their armies and resources to an action that would negatively affect their own national interest. In Ancient Rome, the Tribunes who represented the common citizen had veto power over legislation by the Senate to prevent legislation by the wealthy that would not serve the interests of the genaral population.

Legal Protection from Injury

Legal protection from injury is a form of recourse one who has been wronged by an authority can take. Such protections have been built into successful law codes since before the Code of Hammurabi. National Bills of Rights and International Human Rights are expressions of the rights all people have for protection against abuse of power by governments or individual people. To guarantee the cause of justice and legitimacy, such legal protection must be available without excessive costs or legal hurdles so that it is actual protection and not a masquerade for protection.

Checks on abuse of power: morality and self-regulation

In history, many societies have attempted to rely on moral authority as a check on the abuse of power. However, moral authority relies on the conscience of the actor and does not involve force unless the moral law becomes legislated. The most widely known example of of the relationship between moral (or spiritual) power and the temporal power of the state is the relationship between church and the state in the Holy Roman Empire. In 325 C.E., Emperor Constantine proclaimed Christianity the official religion of the empire in a attempt to bring social stability because Christian morality was considered a support for Roman law. In 392 C.E., all other "pagan" cults were forbidden by an edict of Emperor Theodosius I.[1] Islam followed the same pattern with the concept of Dar-el-Haarb, which is a non-Muslim territory and the Dar-el-Islam, which is a Muslim territory.

History has taught two lessons from these experiments (1) that morality not backed by force will be ignored by power hungry and ruthless people, and (2) that morality backed by force is a form of oppression of the human mind and soul.[2] "A man convinced against his will is of the same opinion still," is a common saying which reveals the fallacy attempts to legislate morality.

In a free society, the majority of people must be able to regulate themselves, care for themselves and produce more than they consume. In short, they must contribute more than they take. A society in which more people take than they give will be like draining a resevoir, once the resources are depleted it will collapse. The self-regulation of people is the role of morality, character, knowledge and skill. These things are not legislated but taught and learned, believed and lived. This is the power of a free society, and it is distributed among all responsible citizens. The absence of the self-regulation is the absence of democratic power. A democractic society cannot exist solely by creating the legal machinery of a democratic state, such as a freedom of religion, freedom of the press. and the right to vote. The absence of positive democratic power which manifests itself through self-motivated and self-regulated citizens will lead to a power vacuum which will be filled by despotic rule.

Even though the power of self-motivation and self-regulation is necessary for a free society, it is not sufficient. Such power will inevitably seek to expand if it is unchecked. Therefore both self-regulation and checks and balances are required for a society or institution which all members will consider legitimate.

The separation of powers

The separation of powers (or trias politica, a term also coined by French political thinker Montesquieu) is a model for the governance of the state. This same principle is applied in non-political realms under the term separation of duties.

The separation of powers also serves to diversify power according to function and interest. Just as the human being consists of many organs working together harmoniously, a complex society has many functions best performed by various social organs. Thus separation of powers is a combination of functional decentralization as well as a method of checks and balances.

When employing a system of checks and balances for governmental action to be processed, it must pass through what has been called the Montesquieuian gauntlet. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.

Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems. Checks and balances makes sure not one branch is too powerful.

Checks and Balances in Ancient Rome

The early Roman Republic was governed by wealthy land owners who formed a ruling class. They took turns serving as Senators in government, and also were in charge of military leadership for the protection of the republic. Common people, or plebeians, in the Republic served the ruling class as laborers, builders, soldiers and many other necessary jobs. However, the Senate frequently passed laws that advanced the interests of the ruling class at the expense of the plebes. Finally, the plebes in the military, realizing they were an essential part of protection of Rome, went on a strike, pledging not to work for a country that did not protect their interests as well as that of the ruling class.

This led to the creation of a set of laws, known as the Twelve Tables which governed all Roman citizens equally and the creation of Tribunes who had the power to veto any legislation that was against the interest of the plebes. This political mechanism was a check and balance which prevented oppression of the ordinary citizens by the ruling class. The justice that was created in the Roman Republic was admired by people through the Mediterranean. In the early days of the Roman Republic, little military might and police power was required to expand territory or keep order because everyone who became acquainted with it clamored to join it and helped the Roman armies depose their dictators.

The checks and balances on Roman Rule in the early republic were thus several. The ruler served at the pleasure of the Senate, which was made up of the landed class. The Senate, in turn had its power checked by the Tribunes. Finally, all citizens were subject the the principles of justice spelled out in the Twelve Tables.

The decline of the Roman Republic developed over centuries as corrpution, political ineptness, and a lax citizenry allowed for behavior unthinkable at the founding. Reforms by Julius Ceasar, while initially restoring many of the moral virtues and laws of the early Republic, ultimately led to near absolute power for the Emperor and, under the corrupt and inept regimes of Caligula, Nero and others the rule of law was no longer consider legitimate by Roman citizens. Rather than clamoring to join the Empire, people sought to revolt and escape its oppressive rule.

Checks and Balances in the United Kingdom

Magna Carta

The Magna Carta was the most significant early influence on the long historical process that led to the rule of constitutional law today. It was originally created because of disagreements between Pope Innocent III, King John and his English barons about the rights of the King. The Magna Carta required the king to renounce certain rights, respect certain legal procedures and accept that the will of the king could be bound by law.

The Magna Carta was not, as popularly believed, the first document to limit the power of an English king by law (it was partly based on the Charter of Liberties); that was designed to limit the power of the king (it mostly did not in the Middle Ages). It was not a single static document, but a variety of documents referred to under a common name. It was renewed throughout the Middle Ages, and further during the Tudor and Stuart periods, and the 17th and 18th centuries. By the early 19th century most clauses had been repealed. The influence of Magna Carta outside England can be seen in the United States Constitution and Bill of Rights. Nearly every common law country with a constitution has been influenced by Magna Carta, making it one of the most important legal documents in the history of democracy.

Separation of powers has not been a prominent part of the political thought of the United Kingdom since the eighteenth century. The Executive is drawn from the Legislature, and is subordinate to it. Since the Executive is drawn from the leadership of the dominant party in parliament, party discipline often results in a de facto situation of Executive control of the Legislature, although in reality MPs can reject their leadership and vote against them. The House of Lords is the highest court of appeal for civil matters in the United Kingdom and for criminal matters for England, Wales and Northern Ireland. These appeals are heard by Lords of Appeal in Ordinary (Law Lords) who, in effect, are a committee of the House of Lords. This means that the highest court of appeal is part of the House of Lords and thus part of the legislature. At times, various Home Secretaries have taken decisions which in other countries are judicial, such as the release, or continued detention, of prisoners. Thus it can be seen that in the United Kingdom the three "powers" are not separated, but are entwined. However, this has never threatened British civil government. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.

Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, including the monarch and the courts. In theory, this seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents exercising various functions, and Parliament is limited by various legal instruments, international treaties and constitutional conventions.

The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform. The Constitutional Reform Act 2005 seeks to bring stronger separation of powers to the British system. Some have defended the current system on the grounds that it discourages judges from making law by judicial rather than legislative means.

In recent years there has been talk of the creation of a supreme court. Although it will not be sovereign as in America, it will help to cement the separation of powers as there will no longer be a Lord Chancellor who is a member of the executive, legislative and Judicial branches of Government.

Checks and Balances in the United States

Page I of the Constitution of the United States of America

In drafting the United States Constitution, the framers included features of many novel concepts including hard-learned historical lessons about checks and balances on power and the then-new concept of the separation of powers. Similar concepts were also prominent in the state governments of the United States. As colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.

The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the voters. There are also judicial prohibitions against certain types of interference in each others' affairs. Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. The accusation of judicial activism has been levelled at some judges, and that the power of interpretation of law is misused.

The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness, for fear of security, of the public to sacrifice checks and balances to decisive leadership by the prsident.

Although each branch has frequently sought to overstep its power, the separation of powers together with checks and balances has created a relatively stable government since the founding of the republic. The system of checks and balances is to some extent a deterrent because any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.

However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action."

The reason for two houses in the legislature

The original intention of having two houses in the legislature, was to balance the interests of the states and the interests of the people. Under the original constitution, state legislators appointed the two senators from each state, while the general population elected representatives. Under this arrangement, the long term interests of the state could be balanced against the immediate wants of the people. No legislation would pass unless it was both (1) good for the state, and (2) good for the people. This check and balance was effectively eliminated by the Seventeenth Amendment, which also placed election of Senators in the hands of the same interest group as the House of Representatives. But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.

Fourth branch: Independent executive agencies

The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

Fourth branch: The press

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections, as well as indirectly influencing the branches of government by, for example, expressing public sentiment with respect to pending legislation. The press is also sometimes referred to as the Fourth Estate, a term of historical French origin, which is not related to the modern three-branch system of government. Originally, the First Amendment of the United States Constitution explicitly guaranteed freedom of the press only against interference by the federal government. Later this right was extended by the United States Supreme Court in the Incorporation Cases to cover state and local governments. Traditionally, the press has been the "voice of the people" keeping government somewhat in check. An example of this was the Watergate scandal; where two Washington Post reporters exposed government corruption and coverup at the highest levels of government. This exposure caused many individuals to either resign, be fired, or prosecuted. Within the last decades it has been well established that large Media conglomerates have heavily influenced the press by editorializing the reported stories. This has been accomplished by the procurement of various News entities who have lost their autonomy and impartiality. It is well known that Media Conglomerates are staunch supporters of various government officials. Patterns of past performance have indicated that the conglomerate editorializing have usually been in favor of such Officials. This has caused somewhat of a deterioration in the "voice of the people".

Fourth branch: Direct Democracy

Direct Democracy

Initiative

Referendum

Recall

Politics as a check

Modern day politics may now be seen as a form of check and balance. The leader of the opposition has the ability to scrutinize the work of the government thus ensuring a further safeguard against any abuse of power by the executive. As a consequence, a leader may fall from power at the following election.

State and local governments

The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.

In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.

Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like.

Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Two-Branch systems

When the Gaza Strip went under Palestinian control in 2005, it only had executive and legislative branches. Plans, if any, for a judicial branch have not yet been described.

Parliamentary systems

The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.


Taiwan (Republic of China) : Five branches

Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)

Due in part to the Republic's youth, the relationship between its executive- and legislative branches are poorly defined. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority.[1]

The press around the world

Main articles: Freedom of the press and public broadcasting

Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.

Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.

An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.

Criticisms

In parliamentary systems such as the United Kingdom the three "powers" are not officially separated. However, this has not threatened British stability, because the strong traditions of that system serve a similar purpose. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. The existence of a strong independent executive may well encourage instability, because it is less consensus-orientated than a parliamentary system, and because it accustoms the population & political elite to an excessively dominant individual leader. In times of instability, competing political groups can become obsessed with controlling the executive office and it is often the loss of a presidential election which triggers greater instability. In a presidential system, there can only be one winning party, and all others fail entirely to gain power. In contrast, a parliamentary system can allow all political groups to have some share in control of the executive, at least in theory.

The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised.

There is no current constitutional system which adopts a complete separation of powers, in the sense of a distribution of the three functions among three independent sets of organs with no overlapping or coordination. Some of the early American States and the French Constitution of 1791 tried strictly to give effect to this doctrine but failed. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's legislative ability to veto, or judicial power of appointment.

Sometimes systems with strong separation of powers are pointed out as difficult to understand for the average person, when the political process is often somewhat fuzzy. Then a parliamentarian system often provides a clearer view and it is easier to understand how "politics are made". This is sometimes important when it comes to engaging the people in the political debate and increase the citizen participatory.

Notes

  1. Gordon L. Anderson, Philosophy of the United States: Life Liberty and the Pursuit of Happiness. St. Paul, M.N.: Paragon House, 2004, pp. 37 ff. ISBN 1557788448
  2. See Nation State.

Related restraint-of-power concepts

  • Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments. See also subsidiarity.
  • Rule of law - Prevents arbitrary exercise of the executive power, preserves general and minority rights, and promotes stability and predictability.
  • Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
  • Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
  • Civilian control of the military - Helps prevent dictatorship through military rule.
  • Separation of duties in organizations.

See also

  • Absolute power
  • Balance of power (politics)
  • Corruption Perceptions Index - Parliamentary systems are, in general, perceived as less corrupt than other systems
  • Judicial activism
  • List of democracy and elections-related topics
  • Separation of powers under the United States Constitution
  • Separation of powers in Australia
  • Signing statement

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