4. Origins of 'Checks & Balances' in System and Mechanism
David Wootton's essay, Part 4 'Elective Despotism'
Below is the continuation of David Wootton's essay —
Liberty, Metaphor, and Mechanism: “Checks and Balances” and the Origins of Modern Constitutionalism — previous instalments were Part 1, Part 2, and Part 3.
Part 4: ELECTIVE DESPOTISM
In this essay I have traced the origins of the idea of checks and balances. I hope I have shown that, far from being an idea so straightforward that it has no history, it in fact has a double origin. On the one hand, as Noah Webster’s “checks and balance,” it is a complex amalgam of two theories which until the middle years of the eighteenth century were assumed to be incompatible: the theory of mixed government and the theory of the separation of powers. Here what made it possible to bring checks and balances together was a new understanding of the possibility of an equilibrium of independent (and also unequal) forces so that the powers within a mixed government could be thought of as always separate rather than as being obliged eventually to act in concert. The importance of this theory (born of opposition to Walpole) was that it legitimized opposition to the government and rejected the traditional quest for consensus. On the other, as Gouverneur Morris’s “every legislative check and balance,” it derives from the view that in a representative democracy the greatest danger is that the legislature will acquire the defects of a popular assembly, and that if it does, the executive and the judiciary may prove incapable of checking its actions. The legislature had therefore to be balanced as well as checked: by elections, by political opposition or factional division, by public opinion, by a second chamber, by a strengthened executive. The importance of this theory (born both of a recognition that power was now concentrated in the House of Commons and of a critique of Rousseau and ancient republicanism) was that it identified and addressed the possibility of a “tyranny of the majority.”
Thus checks and balances came to be linked by two quite different routes. In addition the checks or balances (for once the two were coupled together the distinction between them became increasingly difficult to sustain) that were understood to be at work changed radically over time as the veto was supplemented by the idea of accountability and as the electorate, the political party, and the press came to be recognized as having a crucial part to play in preventing the abuse of power. By coining the phrase “checks and balances,” Adams thus made it possible to link together three distinct traditions—mixed government (Polybius), separation of powers (Montesquieu), the need for precautions against the tyranny of the majority (de Lolme)—within a single catchphrase. This was a rhetorical not an intellectual achievement, for Adams did not grasp the full significance of the new legislative balances and checks identified by Spelman and de Lolme. Although he had some sense that the English constitution was self-regulating, he did not go much beyond Polybius and Montesquieu in his understanding of why this was so. Nevertheless he was convinced that “the English constitution is, in theory, both for the adjustment of the balance and the prevention of its vibrations, the most stupendous fabric of human invention.”
So the history of the idea of checks and balances is much more complicated than has previously been recognized, and that history can only be understood in relation to the idea of a constitution as a machine, sometimes a self-regulating machine. Without mechanical thinking, the first form of systems analysis, there could have been no “modern” (as opposed to ancient or medieval) form of liberty. The idea of limited government, of checks and balances, originally depends on the metaphor of a constitution as a machine in a state of equilibrium and in its sophisticated form depends on some practical acquaintance with feedback mechanisms. For Madison, representation was “this great mechanical power . . . by the simple agency of which the will of the largest political body may be concentered and its force directed”; hence the need to check and balance it with care. In this sentence the phrase “mechanical power” is to be taken seriously as a tool with which to think. I started with Nietzsche’s statement that truths are really metaphors. If Nietzsche is right, the first task of the historian of ideas must be to bring back to life all the long-dead metaphors. I have tried to make a start here by showing that the metaphor of “constitutional machinery” was once vigorous and capable of doing real work; indeed it is to this metaphor that we owe all but the most elementary components of the idea of limited government.
For it should now be apparent that the whole modern tradition of constitutional theory, from Trenchard and Moyle onward, is concerned to limit the power of government. Initially the emphasis was on limiting the executive, but, over time, checks-and-balances theorists became increasingly concerned to limit government in general, and eventually they came to see the chief danger as coming from the legislature in particular. Trenchard and Moyle were supposed to have said (and Fletcher of Saltoun certainly did say in 1698), “For not only that government is tyrannical which is tyrannically exercised, but all governments are tyrannical which have not in their constitution sufficient security against the arbitrary power of their prince.” For Fletcher and his associates, the executive was the problem. Bolingbroke made a similar point in much more general terms: “Tyranny and slavery do not so properly consist in the stripes that are given and received, as in the power of giving them at pleasure, and the necessity of receiving them, whenever and for whatever they are inflicted.” And we have seen Gouverneur Morris writing in 1776 of the need to diminish political liberty, the freedom of action of our rulers, in order to increase civil liberty: it was checks on the legislature that he had particularly in mind.
These last two quotations from Fletcher and Bolingbroke are examples of what Quentin Skinner has termed the neo-Roman republican theory: the theory that for liberty to exist it is not sufficient that there is no tyranny; rather it is necessary that no one has the power to act tyrannically. As we have seen, checks-and-balances theorists maintained that where someone has the power to act tyrannically, tyranny is the inevitable outcome. On Skinner’s account, neo-Roman theorists were committed to a particular type of guarantee against tyranny: they held that a state was free if it was governed by its citizens, either assembled or through their representatives. Any claim to a prerogative power which could be exercised against the wishes of the representatives of the political community was (as in the quotation from Fletcher) a claim to a tyrannical power. Thus if, after the Restoration, neo-Roman theorists claimed to be able to accept the idea of monarchy, they could do so only because they intended to make the monarch a merely symbolic figurehead without any real power, a Venetian doge. Rousseau and Paine, one might comment, would have understood this argument for autonomy or self-government: a political community must be its own master if it is to be no one’s slave.
But the argument for popular sovereignty is not the only way of responding to the problem of the potential for tyranny, and it is the alternative to it which I have been exploring here. This response is based in the first place on the recognition that representative government can never be the same as self-government: it acknowledges the problem of corruption and of the emergence of elites. This was a problem which preoccupied the true Whigs in their opposition to the court Whigs. Second, it faces up to the fact that the majority may wish to tyrannize the minority. “It is a mistaken notion in government,” writes Gordon in 1721, “that the interest of the majority is only to be consulted, since in society every man has a right to every man’s assistance in the enjoyment and defense of his private property; otherwise the greater number may sell the lesser, and divide their estates among themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority.” Here the key issue was not so much property but, as Gordon immediately went on to emphasize, religion, for the House of Commons had repeatedly shown itself hostile to the rights of religious minorities. In order to recognize this problem of majority tyranny, a conceptual shift was necessary, for it is not until Locke’s Two Treatises that the word “majority” is used in the sense of “the greater number or part” (rather than, for example, to refer to the age of majority), the usual assumption until then being that the decisions of an assembly properly reflected a consensus. And the passage from Gordon I have just quoted may be the first occasion on which “minority” is used to mean the smaller number—the earliest example given by the OED is from 1736.
This shift involved rejecting the view, which Skinner says lay at the heart of neo-Roman political theory, that one could think in terms of “the body” of the political community and attribute a single will to the nation; and it thus prepared the ground for an eventual recognition that party-political divisions might be essential to the preservation of liberty. Advocates of checked-and-balanced government held that the power of the state must be limited so that it is incapable of summoning the strength to act tyrannically. “Only the checks put upon magistrates make nations free; and only the want of such checks makes them slaves,” writes Trenchard in 1722 in an essay on “The encroaching nature of power, ever to be watched and checked,” but as he goes on to develop this argument, it becomes clear that he is not simply concerned to check the power of the executive and make it subordinate to the legislature but rather to make the more general claim that all power tends to corrupt and must be confined within limits: hence the reluctance of Parliaments to vote for annual elections. “The Romans, who knew this evil [the divergence between the interests of the rulers and the ruled], having suffered by it, provided wise remedies against it; and when one ordinary power grew too great, checked it with another. Thus the office and power of the tribunes was set up to balance that of the consuls. . . . And when the authority of the tribunes grew too formidable, a good expedient was found out to restrain it” by requiring that the tribunes always act unanimously. Even the representatives of the people needed to be restrained in the cause of liberty. John Adams regarded it as a fundamental axiom that “A single assembly is liable to all the vices, follies, and frailties of an individual.” “An elective despotism was not the government we fought for,” wrote Jefferson in 1784, “but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
The argument that power tends to corrupt was not new: it had been clearly formulated by Nedham in The Excellencie of a Free State. Earlier theorists would surely have accepted that power has, as Nedham explained, its own peculiar temptations:
The reason is, because (as the Proverb saith) honores mutant mores;“Honours change men’s manners”; accessions, and continuation of power and greatness, expose the mind to temptations: they are sails too big for any bulk [i.e. hull—cf. OED, s.v. bulk] of mortality to steer an even course by.
The kingdoms of the world, and the glories of them, are baits that seldom fail when the Tempter goes a-fishing, and none but He that was more than man, could have refused them.
But Nedham was able to place a whole new emphasis on the tendency of power to corrupt because he had a new theory, the separation of powers, of how it was possible for a people “so to regulate their affairs, that all temptations and opportunities of ambition, may be removed out of the way.”
Thus the same neo-Roman definition of individual liberty as the antithesis of slavery could be used for a variety of political purposes. Skinner, in arguing for the coherence of the neo-Roman conception of liberty, appears to think that a doctrine of popular sovereignty always follows from it—and indeed Trenchard ends his essay with the claim that the Roman mechanism of “an appeal to the people” is the best of all protections for liberty. But even for Trenchard (who acknowledges that the people may sometimes, if rarely, abuse their sovereign power) and for Gordon (who fears a conspiracy of the many against the minority) and even more clearly for Nedham (who had been reprinted in 1767) and for de Lolme and for the Founding Fathers, what also followed from the neo-Roman account of liberty was an argument for the separation of powers and for checks on the power of the legislature as well as the executive, for any concentration of power (even in the hands of the majority) was now held to be dangerous. Even now this is not—in Great Britain at least—simply an academic issue, for a debate between those who insist on the need to maintain a unified Parliamentary sovereignty (which, it is claimed, is the only reliable guarantee against tyranny) and those who are willing to see sovereignty distributed through the organs of a federal Europe (which, it is claimed, is the best way of taming the nation state and of preventing the emergence of a new Hitler or Mussolini) has been central to British political debate over the last half century.
The new argument for limited government did not simply displace existing discourses. Historians of political thought have tended to write as if there were a number of alternative languages—ancient constitutional or Cokean; natural rights or Lockean; republican or neo-Harringtonian—available in the eighteenth century for discussing politics. To stress the importance of one language, it has been assumed, implies a reduction in the significance of the others so that John Pocock’s work has been read (and is intended to be read) as implying that republican discourse was much more important than the argument from natural rights. But this way of thinking does not do justice to the texts we have been considering. No one had a higher opinion of Locke than Moyle (who quotes with approval the view that the Two Treatises are “the ABC of politics”) yet Moyle is one of the founders of the new mechanical language and an admirer of classical republics. So, too, in Cato’s Letters, Trenchard and Gordon seem to oscillate from one moment to the next between a Lockean and a republican language. For these thinkers, however, these were not several alternative languages for discussing politics; they were rather several languages, each of which was appropriate for a different aspect of politics. Locke established natural rights and the principle of government by consent, thereby providing a theoretical foundation for liberty (including religious liberty). The neo-Roman republican theory defined liberty as the absence of the capacity to tyrannize. And the language of checks and balances explained how a constitution could be constructed so that liberty was maximized. Just as one would expect an architect to be familiar with issues of the aesthetics of form, structural engineering, and quantity surveying, so the language of politics had a normative discourse of rights, a theory of liberty grounded in an account of human psychology, and a value-free account of constitutional engineering. These were not seen as alternative languages: each was taken (one can see the process at work in Cato’s Letters, No. 60 to No. 62, for example) to imply the next. They were mutually supporting. Similarly in The Federalist, Lockean and Humean arguments are taken to be complementary, not (as a modern reader might naturally assume) at odds with each other.
I promised that my history of “checks and balances” could help us rethink our own political commitments, and it will if it makes us take constitutional machinery seriously. This should be evident from the way in which my account of the implications of neo-Roman arguments diverges from Skinner’s. But one must recognize that to seek to limit government so that it cannot act tyrannically, to check and balance, to internally divide it so that power is set against power may well be to weaken its capacity to do good as well as ill. In the United Kingdom we have a strong and powerful government: there is no effective division between legislature and executive; the powers of the second chamber are weak (it cannot, for example, oppose legislation to implement manifesto commitments made by the governing party nor can it initiate budgetary measures); the judiciary is not fully independent; the legislature has a limited and diminishing capacity to hold the executive to account; the first past the post system tends to ensure one-party government; the government can call elections whenever it chooses; the independence of the civil service (a check new in the nineteenth century) is under threat; and so on. Proper checks and balances would mean a far weaker government, a government which would find it much harder to “deliver,” to use the word which is currently the most popular in government speeches. A weaker government might have to recognize that it had no option but to hand over the task of managing schools, universities, and hospitals to genuinely independent management, management released from the checks and balances that are entirely appropriate in a political context. This is an old argument, and I hardly need to rehearse it at any length here, but it is worth noting that it is different from, even if it often points in the same direction as, arguments against government monopolies and in favor of competition. The standard “Thatcherite” arguments for privatization of public services derive from Smith, while this argument derives from Madison.
But I have a new argument to make as well. Harrington believed that his constitution could remain unchanged and unchanging because the ballot and rotation would prevent corruption and so would constantly return the political system to its original starting point. He mocked Machiavelli for thinking that political reform required the irregular intervention of bold politicians who would bring the political system back to its founding principles; his system was constantly self-reforming. We can still see something of this way of thinking in the arguments of Spelman and de Lolme. Their balance may be dynamic, but its oscillations or vibrations do not alter the system. Madison, it seems to me, takes a cautious step away from this way of thinking. When he discusses the conflict between factions, he assumes that factions can simply cancel each other out. But when he talks about the parts of government keeping each other in their proper places, he envisages them as being in a constant struggle for power, an unending series of attacks and counterattacks. Out of this struggle will come political decisions and political action. In such a world there will be (as in the international struggle for power which constantly re-creates a balance of power) long-term winners and losers. As the decades pass, the system may begin to be quite different from what it was at its first foundation. In rejecting external control Madison was rejecting the possibility of restoring the American Constitution, as Machiavelli believed all constitutions needed periodically to be restored, by recalling it to its founding principles; but in his description of internal control he was also rejecting the Harringtonian conviction that the Constitution could be prevented from ever changing. He was, it seems to me, proposing to let the system run on the presumption that, as long as power was divided against power, as long as there were adequate barriers to a monopoly of power, the system could be allowed to evolve over time. In other words, what Madison had in mind was something much more like a market (he was an early reader of Smith), which is self-stabilizing but never repeats itself, than like a fantail windmill which comes back again and again to the same starting point.
Two surprising consequences follow. The first affects our idea of a written constitution, for although Madison was defending a written constitution, he was thinking in terms of a flexible and developing system, despite the fact that the two are normally thought to be, if not incompatible, then certainly in a dynamic tension. The second affects our idea of checks and balances, for if Madison had the idea not just of a dynamic equilibrium but of a dynamic evolution of what one might call a political ecology in which equilibria are constantly being established and reestablished but change radically over time, then the idea of checks and balances is not necessarily as static, as fixed, as negative as is usually assumed. Unlike Montesquieu, Madison did not imagine that the various organs of government could be required to act in concert; rather he envisaged a system where the conflict between the organs of government would have unintended consequences that were beneficial to the public. A political system in which there are numerous checks and balances could also be one which is flexible, adaptable, resilient. It is precisely because the idea of checks and balances can be used to think about dynamic interactions, not just restrictions on freedom of action or static equilibria, that it contains a largely untapped potential to help us think about political change and about a central political problem: how a political system can be engineered to be both limited in its power to do evil and at the same time quick to adapt to changing circumstances. Trenchard and Moyle were concerned that “the very excellence of our government betrays it to some inconveniences, the wheels and motions of it being so curious and delicate that it is often out of order,” and this was because they conceived of the constitution as a complex mechanism incapable of self-regulation. Madison, by contrast, imagined a constitution so curious and delicate that it need never go out of order, and this not because it would never go wrong but because it would have the capacity to right itself when it did go wrong. If Trenchard and Moyle were the first of the political engineers, he was the founder of a new discipline which we may term (despite the obvious anachronism) political cybernetics.
What makes adaptation possible is that checks and balances not only serve to secure our liberty, they also entrench disagreement into the political system, and thus protect our collective capacity for critical reflection; we need them not only as a bulwark against tyranny but also to preserve our capacity for innovation. Only where conflict is institutionalized within government will debate and disagreement flourish, in the process encouraging novelty without (the claim is a remarkable one) endangering stability.
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
Evolutions of social order from the earliest humans to the present day and future machine age.