3. Origins of 'Checks & Balances' in System and Mechanism
David Wootton's essay, Part 3 'Automatic Machinery'
Below is the continuation of David Wootton's essay, as promised in June—
Liberty, Metaphor, and Mechanism: “Checks and Balances” and the Origins of Modern Constitutionalism — previous instalments were Part 1 and Part 2.
Part 3: AUTOMATIC MACHINERY
So far I have argued that there is a radical discontinuity between the Polybian or Plutarchan notion of the balance and the new mechanical language of controls, clogs, and checks, and of counterpoise, balance, and equilibrium that establishes itself after 1697. Second, I have argued that there are several types of check and more than one type of balance, and that it is important to distinguish between them. Thirdly, I have argued that where checks were plural from the beginning, the balance was singular and only became plural with a new account of the role of parties and political leaders in representative government and with the birth of federalism. At this point you might think the idea of checks and balances has been pretty thoroughly explored; this then is the time to turn to that aspect of the new mechanical thinking which seems to me to be missing from modern usages of the language of checks and balances.
Let us start with the translation of Plutarch on the balance which we find in the Dryden edition:
For the state, which before had no firm basis to stand upon, but leaned one while towards an absolute monarchy (when the Kings had the upper hand) and another while towards a pure democracy (when the people had the better of it), found in this establishment of the Senate a counterpoise, which always kept things in a just equilibrium. For the Twenty Eight always adhered to the weaker side, and put themselves like a weight into the lighter scale, until they had reduced the other to a balance.
If we take Dryden’s translator to be describing not the decisions of politicians but the working of a machine, then what we have here is an automatic mechanism where a feedback loop enables the machine to regulate itself. What is involved here is not a static but a dynamic equilibrium: first the balance tips slightly one way and then the other, but each time it is brought back toward the horizontal. Where, before the establishment of the Senate, it seesawed wildly; after its establishment it oscillates gently, always close to the horizontal.
Perhaps I am reading too much into this brief passage, for the idea of a self-stabilizing system was not a familiar one in the late seventeenth century. In 1721 Thomas Gordon could see that the precondition for “control and counterpoise” was “a perpetual struggle: But by this struggle liberty is preserved, as water is kept sweet by motion.” The mixing of metaphors here, as in The King’s Answer, shows mechanical thinking pressing at its limits. Gordon, after all, could not use the example of a self-stabilizing system with which we are most familiar, the market, where there is constant movement and change but where competition works to match supply to demand and to bring profits toward an average rate. Nor would he have been familiar with any self-stabilizing machines. He did not, for example, have the benefit of central heating. Here the temperature in the house oscillates around a norm established by a thermostat: when it falls significantly, the furnace is switched on; when it rises, the furnace is switched off.
In the second half of the eighteenth century, there was, for the first time, considerable interest in self-stabilizing systems, and it was soon claimed that under certain conditions—a separation between legislature, executive, and judiciary; a bicameral legislature; a unified executive; juries judge of law as well as fact; regular elections and a free press—representative government had a self-stabilizing character where excess in any direction would tend to correct itself automatically. Societies with representative government appear to be in a constant state of agitation, yet we believe them to be peculiarly resilient. Like a tree in a storm, the political fabric bends, but it does not break. We all unthinkingly rely on this idea that certain mechanisms enable the political system to correct its own mistakes when we maintain that an independent judiciary and jury trials are guarantees of liberty or when we say that it is essential to the democratic process that there should be effective opposition or when we take it for granted that we are unlikely to live through a violent revolution in England or America. This self-stabilizing system was first identified as functioning within English politics and then deliberately constructed in the American Constitution.
This revolution is of fundamental importance, for if we feel secure in the enjoyment of our liberties, it is because we believe that the political system is in some way or other self-stabilizing, that given time the consequences of bad decisions will be mitigated, not exacerbated. There are a number of reasons why this revolution has remained invisible. It was not formulated in a “classic” text of political theory. Indeed the ideas involved still remain somewhat unfamiliar and inchoate so that we have little idea of under what circumstances and to what extent they are true—could one, for example, imagine a Nazi party coming to power within a well-designed constitution, and if not, why not? Moreover, to discuss them in an eighteenth-century context it is necessary to talk about ideas of equilibrium in mechanics, a subject of little interest except to historians of science. Above all, the new theory of politics as self-stabilizing was masked by its superficial similarity to the far older theory of Polybius and Plutarch. The classical formulations of the idea of a self-stabilizing system, however, were designed to describe political systems which had the capacity to evolve into either monarchy, aristocracy, or democracy but in fact stabilized in an in-between condition. What made this equilibrium possible was not just an arrangement of political institutions but also a set of extra-institutional powers, or what one eighteenth-century commentator called “weight in the community”—even if Polybius did not make this explicit, any eighteenth-century theorist familiar with Harrington’s Oceana (1656) would have read this back into the text. Thus Trenchard and Moyle wrote that “This balance [the constitution of England] can never be preserved but by a union of the natural and artificial strength of the kingdom . . . or otherwise the government is violent and against nature.” The new theory, by contrast, assumed that an overwhelming preponderance of power lay with a relatively undifferentiated “people,” but that, despite there being no equilibrium in the social distribution of power, a self-stabilizing political system could exist.
Precisely because it involved a rejection of the traditional idea of a mixed government, the only system for which the claim that it was self-stabilizing had previously been made, many contemporaries found the new theory incomprehensible, implausible, or paradoxical. It relied, they recognized, on the idea of checks on power; it claimed that the checks involved were not simply “parchment barriers,” but as far as they could see the checks were after all only “checks on paper”—Patrick Henry was blunter still, calling them “specious imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances”—that is to say they relied purely on institutional mechanisms. Their puzzlement and incomprehension continues to interfere with our ability to understand the intellectual revolution that had taken place.
Let us go back to the mechanical metaphor. The power of this depends partly on the quality of the clockwork mechanism one has in mind. The heart, which de Mornay likened to a clock constructed by God, does not beat steadily but sometimes races, and for John Donne, in the early seventeenth century, clockwork was a symbol of unreliability to be compared unfavorably with the genuinely regular movement of the sun through the heavens. René Descartes (1596–1650) obviously represents a key moment of transition, for in arguing that animals were mere machines, he not only deprived animals of intelligence, he also attributed remarkable capacities to mere machines. It took time for men to construct in their minds the idea of a perfect mechanism, of what Trenchard at the end of an essay on the mechanical philosophy described as “a watch which will go for a thousand years” without winding or mending. First Arnold Geulincx (1624–69) and then Gottfried Leibniz (1646–1716) took the idea of mechanical perfection even further when they claimed that the mental world and the physical world correspond only because both are automata which have been perfectly synchronized, two clocks beating as one, unfailingly keeping time.
This theoretical concept of the perfect mechanism takes form at roughly the same time as a quite different metaphor which contributed equally to the scientific revolution, that of the law of nature. The idea of a law as the expression of uniformity and regularity also involved the mental construction of a new species of perfection. Robert Boyle is an important pioneer in the use of both metaphors for regularity, that of the machine and that of the law, in a world where neither machines nor laws actually performed predictably. It is worth remembering that regular itself is a dead metaphor, derived from the term for a monastic rule; de Quincey in 1722 appears to have been the first to have used it to mean constant and uniform in opposition to irregular—to use it in the sense we now take for granted.
In order to be accurate, clocks have to be designed to continue marking regular intervals of time even as the arc of the pendulum diminishes or the spring unwinds. All good clocks are in that sense self-regulating, and the history of clockwork is a history of regulatory mechanisms such as the verge-and-foliot escapement and the fusee. But a clock cannot tell when it has gone wrong and correct itself. Clocks lack feedback mechanisms, and to think of the universe as clockwork is to invite the notion that God may make occasional adjustments, as Newton believed he did to the orbits of the planets. Harrington insisted that a constitution, if constructed according to the right principles, could continue forever, a self-regenerating system, but the claim explicitly involved a comparison between the political and the divine architects.
However, a century after what we might call the mechanical revolution, a second much less well-understood revolution took place, a revolution which saw the invention of self-regulating or self-governing or self-stabilizing machines. A simple example is the fantail windmill, where the fantail points the windmill into the wind, and constantly adjusts the direction in which the windmill points as the wind changes direction. The fantail is an eighteenth-century English invention—one apparently never adopted in France, where millers preferred to steer their windmills into the wind, not leave them to their own devices. It is on the basis of contemporary windmill technology that James Watt invented in 1788 the most famous self-regulating mechanism of the industrial revolution, the centrifugal speed governor for steam engines. Around the same time, self-regulating mechanisms that had long been known were finding new uses—the thermostat, for example, and the ball-cock valve. All such machines involve—though the term itself is a twentieth-century one—some sort of feedback mechanism.
At the same time and almost ahead of the technological revolution, what we might call mind machines (remember Adam Smith describes theoretical systems as “imaginary machines”) are being invented (again in the English-speaking world) which have self-regulating qualities: Hume invents the modern theory of the balance of trade in 1750 (in 1741 he had written of English politics as involving a “fluctuation” between support for government and opposition, implying perhaps a self-correcting mechanism), and Smith formulates what we now call the market mechanism (he does not use the term “mechanism” himself, but he would have acknowledged that the market was an imaginary machine) in The Wealth of Nations (1776). The whole point of the market mechanism is not that it is a machine but that it is self-regulating or self-stabilizing, that it is a feedback system. Modern economics, as much as modern natural science, is thus dependent on a new understanding of the possibilities of mechanical systems, for even imaginary machines, if they are to be seen to work, must abide by recognizable mechanical principles. Even natural science needed the concept of self-regulation: Shaftesbury as early as 1709 describes the mechanical philosophy as relying on “some exquisite system of self-governed matter,” and I take it self-governed here means in effect self-regulating.
It is worth noting that the process described by Spelman and de Lolme, the new balance between politicians and the public, is one of constant fluctuation around an equilibrium: government provokes opposition, opposition moves into government, and government provokes opposition. The process is never at rest but is constantly self-stabilizing, just like the market or the fantail windmill. It implies, in fact, the idea of dynamic rather than static equilibrium, for what is at work is a feedback mechanism. Indeed any careful formulation of the claim that the people control their representatives through elections involves an appeal to a feedback mechanism. It is also worth stressing that Nedham and Harrington, who seem in so many respects to be the founders of the modern republican tradition, are systematically opposed to feedback mechanisms. They want a wholesale rotation or revolution in elected representatives at every election rather than seeing elections as an opportunity to assess the performance of the people’s representatives. And they want political discussions to take place in secret, as in Venice, not in public. Their assumption is that any passage of time represents an opportunity for corruption, while for later theorists time provides scope for correcting mistakes and adjusting to developments.
We can see the new, contrasting conception best in a passage from de Lolme:
As the representatives of the people will naturally be selected from among those citizens who are most favored by fortune, and will consequently have much to preserve, they will, even in the midst of quiet times, keep a watchful eye on the motions of power. As the advantages they possess will naturally create a kind of rivalship between them and those who govern, the jealousy which they will conceive against the latter will give them an exquisite degree of sensibility on every increase of their authority. Like those delicate instruments which discover the operations of nature while they are yet imperceptible to our senses, they will warn the people of those things which of themselves they never see but when it is too late; and their greater proportional share, whether of real riches or of those which lie in the opinions of men, will make them, if I may so express myself, the barometers that will discover, in its first beginning, every tendency to a change in the constitution.
The representatives thus serve as a thermostat, enflaming or damping down public opinion depending on the presence or absence of a threat to liberty and property. Again, the process involves constant movement as representatives compete simultaneously for power and public support, but as long as the circuit of election, representation, sensitivity, publicity, and new elections is unbroken, the mechanism to check power will continue to function. De Lolme, we have seen, likens the representatives to barometers, not thermostats, for like barometers they act on men’s minds. But while a barometer changes one’s behavior, encouraging one to set to sea or carry an umbrella, one’s resulting behavior does not in itself affect the weather. In politics, by contrast, the acute sensitivity of the elected representatives actually serves to change the political situation as a result of the information being fed back to the public in the same way that a thermostat serves to change the temperature in the room by supplying information to the furnace. What de Lolme is describing is a self-regulating system, and it is because his understanding of politics reaches this level of sophistication that we find him in later editions of his book criticizing Adam Smith’s view that a standing army is not a threat to liberty if the sovereign is the supreme commander and the social elite supply the officer caste: “The author we are quoting has deemed a government to be a simpler machine, and an army a simpler instrument, than they in reality are.” It is only when we see that de Lolme understands England’s constitutional machinery to be self-stabilizing that we can understand just how far from simple he thinks it is. We can also recognize why he was in a good position to identify and admire Smith’s “great abilities”.
It was the need to find checks and balances with which to control representative democracy which most concerned the framers of the American Constitution. When Adams was asked by the state of Massachusetts to preside over a state constituent convention in 1820 (a convention called to revise the constitution of 1780, which Adams had drafted single-handedly), he was praised for “demonstrating to the world, in his defense of the constitutions of the several United States, the contested principle, since admitted as an axiom, that checks and balances in legislative power are essential to true liberty.” But the great political work which sought to clarify and formulate the new understanding of politics which came to be embodied in the phrase “checks and balances” and draw from it a new design for the machinery of politics was not Adams’s Defence but Hamilton’s and Madison’s The Federalist, and it is only by putting that work in the sort of context I have constructed here that we can hope to measure its originality and its success. The Federalist needs to be read against the key texts in the development of the new theories of checks and balances—the texts of Nedham, Moyle, Trenchard, Gordon, Bolingbroke, Blackstone, Spelman, Hume, and de Lolme. At the moment The Federalist is read almost exclusively in the context of Hume (who had been the first to recognize that an increase in scale could itself serve as a check upon the democratic element in a constitution). Hume pioneered the idea of self-regulating systems in economics, but he scarcely employed the concept in his discussion of politics. Indeed he felt sure that in the long run the British constitution would fail to correct its own faults and would dissolve into tyranny or democracy.
In The Federalist No. 50, Madison (for those unfamiliar with the text I should explain that we know who wrote each of the essays which appeared under the byline of Publius) rejects the idea that the working of the Constitution can be supervised by some external body. He then begins No. 51 with this question:
To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down by the Constitution? The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea I will hazard a few general observations . . . the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? 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 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Here the conviction so clearly formulated in Cato’s Letters that “whilst men are men, ambition, avarice, and vanity . . . will govern their actions” has been turned from a psychological principle into the fundamental principle of the constitution.
Indeed in Cato’s Letters, a work that Madison must certainly have known, Trenchard had momentarily formulated this general constitutional principle himself. Taking as his premise that “There has always been such a constant and certain fund of corruption and malignity in human nature, that it has been rare to find that man, whose views and happiness did not center in the gratification of his appetites,” Trenchard concluded that experience had shown there was only one type of free government that could survive: one where
the power and sovereignty of magistrates in free countries was so qualified, and so divided into different channels, and committed to the discretion of so many different men, with different interests and views, that the majority of them could seldom or never find their account in betraying their trust in fundamental instances. Their emulation, envy, fear, or interest, always made them spies and checks upon one another . . . The only secret therefore in forming a free government is to make the interests of the governors and the governed the same, as far as human policy can contrive. Liberty cannot be preserved any other way.
But Trenchard expected the conflict between political leaders and the institutions with which they identified to be far more ruthless and far less successfully channeled into a harmless jockeying for position than Madison did. “Disgrace, torture, and death,” he tells us, should be “the punishment of treachery and corruption.” For hanging, drawing, and quartering, Madison substituted ambition and place-seeking. In so doing he was following the example of Hume, whom he perhaps had in mind. In “Of the Independency of Parliament” (1741), Hume had moved directly from arguing that it is “as just political maxim, that every man must be supposed a knave” to imagining a political system in which “the skilful division of power” sets one institution against another, forcing all together to pursue the public interest.
Bernard Manin has correctly said that the system of internal controls which Madison is describing can properly be termed a self-enforcing equilibrium. One might then say—for it is the same idea expressed in different language—that the Constitution is intended to be a self-regulating machine. We have seen that this was already de Lolme’s idea and that he had elaborated this idea most clearly in his account of “the primary control,” the relationship between the government and the people.
We do not know for sure that Madison had read de Lolme. It seems highly unlikely that he had not read an author whom Hamilton admired and whose book Adams (who shared de Lolme’s preoccupation with the British constitution) had described as “the best defense of the political balance of three powers that ever was written.” Adams’s enthusiasm rather blinded him to the fact that de Lolme was not interested in a balance of monarchy, aristocracy, and democracy (Adams’s primary concern) but rather in a balance of executive, legislative, and judiciary and, in order to achieve this, in legislative balances and checks. In The Federalist No. 70, Hamilton, who wanted a strong and unified executive, stated that he and de Lolme thought as one on the question of executive power and made his own the judgement of Junius, that de Lolme was “deep, solid, and ingenious.” I rather suspect that Madison had read de Lolme and read him with care, for every step of Madison’s argument in No. 51 is foreshadowed in de Lolme.
No quotation from Madison is more famous than the statement (from The Federalist No. 55) that “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.” De Lolme had made a similar argument: in a world where men “had neither any ambition, nor any other private passions,” then direct democracy would be practical, but “in such a society, and among such beings, there would be no occasion for any government.” And indeed this whole chapter (bk. 2, ch. 5) on the evils of direct democracy might be said to illustrate Madison’s astonishing claim—the decisive attack on the notion that it is executives not legislatures that need to be checked—that “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” (Again, there is a precedent in Hume, who tells us that “Cardinal de Retz says that all numerous assemblies, however composed, are mere mob.”) We have seen Madison arguing that every attack must be met with an equivalent defense, that ambition must counteract ambition. De Lolme’s response to the excessive concentration of power is the same: the people must employ “for their defense the same means by which their adversaries carry on their attack . . . using the same weapons as they do, the same order, the same kind of discipline . . . the arts and ambitious activity of those who govern will now be encountered by the vivacity and perseverance of opponents actuated by the love of glory.” Underlying the principle of ambition counteracting ambition is the conviction that there can be no disinterested exercise of power and that mere rules and regulations can never be effective checks. As de Lolme says, “Those who are in a condition to control it [power] from that very circumstance become its defenders.” Thus “The people are necessarily betrayed by those in whom they trust.” The only remedy to an excess of power is therefore to turn power against power, ambition against ambition. De Lolme was in fact the first theorist of legislative balances and checks, of the measures required to control an overwhelmingly powerful legislature. No reading could have been more apposite for the authors of The Federalist, particularly as de Lolme had no interest in what one might term the antiquated elements of the British constitution such as a hereditary aristocracy, a limited franchise, or an executive veto but was interested only in those elements which could be shown to be superior to the democracy of Rousseau’s Social Contract, which along with classical republicanism is as much de Lolme’s subject as is the English political system.
Perhaps Madison had also read or reread Spelman just before writing The Federalist No. 51, for we catch an echo of Spelman’s argument that “It was not the existence of the two parties I have mentioned, that destroyed the liberties of any of those cities, but the occasional extinction of one of them, by the superiority the other had gained over it. And if ever we should be so unhappy as to have the balance between the three orders destroyed, and that any one of the three should utterly extinguish the other two, the name of a party would, from that moment, be unknown in England, and we should unanimously agree in being slaves to the conqueror” in Madison’s statement toward the end of The Federalist No. 50 that “an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.” But whether or not Madison was consciously aware of his predecessors, he shared with them a common purpose: the construction of a mental machine, a political system in which threats to liberty would be automatically counterbalanced, in which “a kind of rivalship” would pit ambition against ambition with the unintended consequence that liberty would be secured.
The Source:
David Wootton, ‘Liberty, Metaphor and Mechanism: “Checks and Balances” and the Origins of Modern Constitutionalism’, in David Womersley, ed., Liberty and American Experience in the Eighteenth Century, Liberty Fund 2006
[To follow soon: the final Part 4 ELECTIVE DESPOTISM]
Evolutions of social order from the earliest humans to the present day and future machine age.