2. Origins of 'Checks & Balances' in System and Mechanism
David Wootton's essay, Part 2 'Checks and Balances'
David Wootton wrote:
2: CHECKS AND BALANCES
“Checks and balances” is a phrase now widely employed to describe due process in decision making and has a more precise meaning in descriptions of political constitutions where power is used to check power, of which the American Constitution is the paradigmatic example. Representatives of the New Model Army had claimed the army was a “check and balance” on the Presbyterians in 1647. Nedham had written of a “balance or check” in 1654; Toland had used the phrase “check and balance” in 1701; and Gouverneur Morris had implied a plural form in 1776, writing of “every check and balance,” but the phrase we now use was first popularized early in 1787 by John Adams in the opening pages of his Defence of the Constitutions of the United States, a work which defended the constitutions of the states and of the Continental Congress, for it was published a few months before the Convention proposed a new constitution for the federal republic. In that same year both John Brooks and Noah Webster used the phrase “checks and balance”; and “balances and checks” was to appear in The Federalist that winter. Others quickly took up Adams’s terminology: Jonathan Smith, for example, addressing the Massachusetts ratification convention, represented himself as “a plain man and get my living by the plough. I am not used to speaking in public, but I beg you[r] leave to say a few words to my brother ploughjoggers in this house.” His few words were about “checks and balances.”
It is time now to ask some straightforward, even obvious questions. What are checks? What are balances? What exactly is being checked or balanced? And why do we need both checks and balances? At first, when I began to puzzle over the history of this phrase, my assumption was that the balance was the balance wheel of a clock, that a check might be an escapement mechanism, and that “checks and balances” was a metaphor drawn from clockwork. But this is not the case, and the prehistory of the phrase proves peculiarly complex; my own efforts here are bound to require correction and modification.
Of the two terms, checks and balances, balance is the older, the one used (if I may so put it, for on this all the translators agree) by Polybius. According to seventeenth-century mechanics, the balance was the first of the six simple forces—the others being the lever, the wedge, the screw, the wheel, and the pulley. (Of these, the most commonly used as a political metaphor after the balance was the screw, as in the following quotation from “A Maryland Farmer”: “The aristocracy, who move by system and design, and always under the colorable pretext of securing property, act, as has been frequently said, like the screw in mechanics, always gaining, holding fast what it gains, and never losing.” Harrington had compared his principle of rotation to the working of a screw or a vice.) Whatever advances may have been made in the theory of the balance in the seventeenth century, there was nothing new about balances as such.
It is the idea of a balance between two forces that interested those who read Polybius and Plutarch before the eighteenth century. Thus Contarini (1543), as presented in a translation of 1599, praises Venice as embodying the Polybian ideal: “This only city retaineth a princely sovereignty, a government of the nobility, and a popular authority, so that the forms of all seem to be equally balanced, as it were with a pair of weights.” After The King’s Answer, the idea of the balance seems to have ceased to be of any significance in English political debate until it was reintroduced by Trenchard and Moyle in An Argument Shewing that a Standing Army Is Inconsistent with a Free Government (October 1697). The term then runs throughout the political debates of the next few years. Of the texts of this period, the one that was best known in later years was Jonathan Swift’s A Discourse of the Contests and Dissentions Between the Nobles and Commons in Athens and Rome(1701) if only because Swift was so frequently reprinted (he was quoted at length by John Adams in 1787, and had been paraphrased by Benjamin Lincoln in 1785). Swift, who is writing a satire on contemporary politics under the guise of ancient history, opens with a discussion of the “balance of power,” a phrase which first appears in English in 1579 in a translation of Guicciardini and whose usage is said to have become common after the Treaty of Utrecht in 1713. In fact it had already become commonplace during the standing army debate of 1697–1701, being used sometimes in the Harringtonian sense of an overbalance (as in Moyle’s “From modern politics we have been taught the name of the balance of power, but it was ancient prudence taught us the thing”), but sometimes also in the modern sense of an equilibrium or near-equilibrium as when an anonymous critic of Trenchard and Moyle writes of “keeping the balance of power in a due libration, turning it sometimes one way, and sometimes another, according to present emergencies.” The same idea of an equilibrium was commonplace during these years in discussions of “the balance of Europe.” Here is Swift:
The true meaning of a balance of power, either without or within a state, is best conceived by considering what the nature of balance is. It supposes three things. First the part which is held, together with the hand that holds; and then the two scales, with whatever is weighed therein. Now consider several states in a neighborhood. In order to preserve peace between these states, it is necessary they should be formed into a balance, whereof one or more are to be directors, who are to divide the rest into equal scales, and upon occasions remove from one into the other, or else fall with their own weight upon the lightest. So in a state within itself, the balance must be held by a third hand, who is to deal the remaining power with utmost exactness into the several scales. Now it is not necessary that the power should be equally divided between these three; for the balance may be held by the weakest, who by his address and conduct, removing from either scale and adding of his own, may keep the scales duly poised.
Two things are very noticeable about this passage—the first is the assumption that a balance must always be a balance between two forces so that if there are three powers they must redivide themselves into two; the second is the conviction that maintaining a balance requires skill, a conscious analysis of the forces at work. One thinks of Halifax’s Character of a Trimmer (1682)—the art of politics consists in knowing when to change sides, to trim the ship of state in order to restore the balance. This way of thinking implicitly likens the constitutional tension between three different institutions (King, Lords, Commons) to the task of building a coalition of parties within a single chamber. As Montesquieu put it (sliding, as eighteenth-century commentators could not help but do, between the static notion of constitutional equilibrium and the dynamic notion of coalition formation), the three powers of King, Lords, and Commons “should form an equilibrium or a stasis. But since, in the necessary course of events, they are obliged to act, they will be obliged to act in concert.” It was natural for John Adams in his influential “Thoughts on Government” of 1776 to assume that to “hold the balance” was synonymous with to “mediate.” But it was also obvious that the struggle between two parties might easily degenerate into what Harrington had called a wrestling match. Usbek, in Montesquieu’s Persian Letters (1721), maintains that “Monarchy is a state of tension, which always degenerates into despotism or republicanism. Power can never be divided equally between prince and people: it is too difficult to keep the balance. The power must necessarily decrease on one side and increase on the other, but usually the ruler is at an advantage, being in control of the armed forces.”
How to escape from this bipolar model with its associated stress on compromise, craft, and cunning and its evident risk of instability? Bolingbroke in The Craftsman (in a passage published in 1730 which is sometimes said to be a source for Montesquieu’s doctrine of the separation of powers) distinguished sharply between the dependency of different parts of the government and their independency. In doing so he is discussing checks and the balance, but he uses the word “balance” coupled with the verb “control”: Moyle had followed Nedham in employing the noun “control” in a political context, using it as synonymous with “checks.”
The constitutional dependency, as I have called it for distinction’s sake, consists in this, that the proceedings of each part of the government, when they come forth into action and affect the whole, are liable to be examined and controlled by the other parts. The independency pleaded for consists in this, that the resolutions of each part, which direct these proceedings, be taken independently and without any influence, direct or indirect, on the others. Without the first, each part would be at liberty to attempt destroying the balance by usurping or abusing power; but without the last there can be no balance at all.
What was new about this was that it replaced the idea that there must in the end be only two forces in balance with the claim that the three forces must remain independent. A similar view is expressed by Blackstone in his Commentaries (1765), only he avoids the word “balance” with its suggestion of stasis. Like Bolingbroke, he starts with a mutual power of veto and then moves on to the interaction of forces which he deftly reinterprets as a dynamic process:
In the legislature, the people are a check upon the nobility, and the nobility a check upon the people . . . while the king is a check upon both. And this very executive power is again checked and kept within due bounds by the two houses. . . . Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits. . . . Like three distinct powers in mechanics, they [people, nobility, executive] jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time, in a direction partaking of each, and formed out of all: a direction which constitutes the true line of the liberty and happiness of the community.
It is appropriate to think here if not when reading Polybius of a ship sailing close to the wind or (to take the hypothesis of Edward Spelman, in a note to his 1743 translation of Polybius) of a ship which is being rowed and at the same time carried by both the wind and the tide, for we really do have more than two independent forces at work.
Anyone who compares these two passages with the passage I earlier quoted from Swift must recognize that they are talking about different processes. Swift expects the resolutions of one part to influence at least one of the others, for otherwise it will be impossible to bring the scales into balance. Bolingbroke believes that if the different parts pay attention to each other they will necessarily become unbalanced, and Blackstone writes as if each could act independently of the others. A similar argument is made by John Adams in 1787. He maintains that any balance of two weights will be unstable (the whole point of a pair of scales is that the slightest alteration in the weights tips the balance) or tippy, and that three equal and independent weights are needed for stability.
All this would be incomprehensible if the only notion of equilibrium that existed in the eighteenth century was that of a scale in balance. In fact eighteenth-century textbooks on mechanics dealt carefully with the idea of an equilibrium between three independent weights, and we have, for example, Adams’s notes on lectures he attended which dealt with this topic. Adams seems to have thought that a three-way balance was inherently more stable than a two-way balance: a mistake perhaps derived from the fact that the experimental apparatus employed in the schoolrooms to illustrate such a system was much less sensitive than a fulcrum balance for it involved a pulley for each weight so that movement would only take place when the friction of all the pulleys had been overcome.
There is a second issue here: need the weights be not only independent but also equal? Bernard Manin, who is one of the few people to have discussed political theories of balance with any care, believes that eighteenth-century theorists always believed that a balance required equal weights, and both Adams and his critics, when talking about the tripartite balance, write as if this were the case. But it would be very strange if everyone made this mistake. We have already seen Swift insisting that “It is not necessary that the power should be equally divided” between the three forces, and the three-way balance would scarcely have been an improvement on the bipolar balance if it had involved the introduction of a new principle of equality. In fact eighteenth-century textbooks showed how to balance three unequal weights in an equal-arm three-way balance by adjusting the angles between the arms.
It is easy to show that not all theorists of multiple balances presumed that the weights must be equal in balances involving three or more forces. This is apparent in Jean-Louis de Lolme’s Constitution of England (first published in French in 1771, and in English in 1775). De Lolme argues that the legislature naturally outweighs the executive with the resulting requirement that the weight of the legislature must be divided and dispersed and the weight of the executive concentrated if a balance is to be achieved. Thus according to de Lolme one of the peculiarities of the English constitution is “its having thrown into one place the whole mass, if I may use the expression, of the executive power,” which enables the royal authority to act as a counterpoise to the power of the people. Even so, the two powers are not as a result equal, for it is right that the power of the executive should be in actuality if not appearance the lesser of the two. But the legislative power, if it is not to be excessive, must be limited, and this can only be achieved by dividing it: “The same kind of impossibility is found to fix the legislative power when it is one, which Archimedes objected against his moving the earth”—a rare appeal, one might add, to the principle, if not of the lever, then at least of the fulcrum. Meanwhile, the people as a whole, as a body outside the constitutional system of powers, “at every instant have it in their power to strike the decisive blow which is to level everything,” although they are only truly free when they have no need to exercise this unrestrained power. Thus for de Lolme the English constitution consists of a number of independent, separate, and unequal powers (including a judicial power consisting not only of an independent judiciary but also of juries who are judge of law as well as fact) whose “reciprocal actions and reactions produce the freedom of the constitution, which is no more than an equilibrium between the ruling powers of the state.” The key to establishing this equilibrium is weakening the legislature and strengthening the executive—the exact opposite of the policies advocated by Trenchard and Moyle.
So, too, for James Madison (who was to become President in 1809 and who had played the key role in the Constitutional Convention of 1787) and Alexander Hamilton (the leading advocate for the construction of a strong American state), the authors (with John Jay) of The Federalist(1787–88). Madison and Hamilton believed that since 1776 America had had plenty of experience of overpowerful legislatures. “It is against the enterprising ambition of [the legislature] that the people ought to indulge all their jealousy and exhaust all their precautions. . . . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” The result of this division and fortification is not a balance of equal powers, for the executive is still the “weaker department,” and the legislative authority contains within itself a “weaker branch” and a “stronger branch.” It is these theorists of politics as the balancing of unequal forces who pioneered what is, I think, the most important and least recognized aspect of the theory of checks and balances, and we will return to them shortly, adducing further evidence that there is a close parallel between their arguments. So far we have seen that by the mid-eighteenth-century there were two conflicting ways of thinking about a balance of powers—one (Swift’s notion) which stressed the formation of alliances between two powers in order to balance a third, and the other (Bolingbroke’s notion, derived in all probability from Moyle) which stressed the independency of the powers.
We turn now to the word “check.” No one seems to have asked when the word “check” is first used in a political context. The earliest usage known to me is in a protest by the New Model Army against the Presbyterians in August 1647 where it is already linked to the word balance. It makes a couple of appearances in Nedham’s A True State of the Case of the Commonwealth in 1654. It is probably as a result of Cromwell’s reading of Nedham that we find him reported as saying to the army officers on February 27, 1657, that Parliament was in “need of a check or balancing power (meaning the House of Lords or a House so constituted)” to protect the rights of individuals, particularly in matters of religion. But I have not noticed the word “check” anywhere else until the upsurge in radical publication which followed the lapse of the Licensing Act in 1695: we have already seen it used by Moyle in 1698—indeed he uses it repeatedly—and it was used in the same year by Trenchard, by Moyle’s friend Hammond, and by Shaftesbury and Toland, the likely authors of The Danger of Mercenary Parliaments who write of “a check and curb.” In this last example we see it linked to what was presumably an earlier vocabulary in which power was to be bridled (a word we have encountered in North’s translation of Plutarch) and curbed. One of the attractions of the word “check” was that it could be used both in a mechanical context and in the context of a human action of surveillance or supervision. We often find it paired with control, which is similarly ambiguous, as in the following passage of Moyle’s: “You may observe in every government that when the executive power is transferred to the legislative, there is no control, nor can there be any check upon them; the people in such a case must suffer without redress, they have no resource; because they are oppressed by their own representatives.” But there are various types of check or control, and it is worth distinguishing them.
The obvious meaning of “check” was that of preventing an action or exercising a veto: this was its original meaning in Nedham. In 1730, for example, we find James Pitt claiming that the three powers of the government “have a negative on each other”—the Commons being able to exercise a veto over the executive by refusing supply, or in Madison’s phrase, employing “the engine of a money bill.” Montesquieu, writing in French, talks about each power being able to empêche, arrête, or veto the other, and from him there derived a lengthy tradition which assumed that the executive must be able to exercise a veto over the legislature (although in eighteenth-century English constitutional practice, this veto had in fact virtually ceased to exist: Jean-Louis de Lolme could find no case of the King exercising his veto after 1692).
But to check might also mean, in Bolingbroke’s language, to examine and control. According to the OED, the first use of the word responsibility is in Hamilton’s and Madison’s The Federalist (1787). In fact the word can be traced back (in its political usage) to 1762 and was in frequent use in late eighteenth-century English in the context of discussions of ministerial responsibility. (It is one of the more remarkable examples of the power of metaphor that the nineteenth-century notion of moral responsibility has its origin in this notion of ministerial responsibility; although one isolated usage of “responsibility” in a moral context may be noted in 1737.) But the idea, if not the word, goes back before then. The first example the OED gives for the use of responsible to mean “accountable” is in Prynne’s Sovereign Power of Parliaments of 1643 where it is asserted that kings are responsible to their kingdoms or parliaments; and this was later extended into a clear doctrine of ministerial responsibility under another name. Thus Trenchard writes in 1698, “The law has always been very tender of the person of the king, and therefore has disposed the executive part of the government in such proper channels, that whatsoever lesser excesses are committed, they are not imputed to him, but his ministers are accountable for them” (although he goes on to complain that in practice this principle of accountability is easily evaded). I am not sure when accountability was first described as a check, but it may well have been during the debates on impeachment of 1697–98. Certainly it is in this sense that Hume wrote (in 1752) of the “particular checks and controls provided by the constitution,” checks which make it in the interest of bad men to act for the public good: he is discussing the problem of how a government is to control its administration. For Blackstone, too, it is impeachment which serves as a check on the executive. So important might this idea of accountability seem that it was capable of swallowing up any other concept of checks and balances. According to the OED the first use of the word accountability was in The History of Vermont in 1794 in a reference to “mutual checks and balances, accountability and responsibility,” although in fact the first usage appears to have been in 1784, in Ethan Allen’s Reason the Only Oracle of Man, and the word is fairly common from 1792.
In the eighteenth century, freedom of the press created a new method of holding those in power to account by summoning them to the bar of public opinion or, to use Bolingbroke’s term, “the tribunal of public fame.” In general, Anglophone political theory was very slow to recognize the significance of freedom of the press for British liberty. No. 15 of Cato’s Letters, “Of Freedom of Speech,” is perhaps the first sustained defense of free speech, describing it as “the great bulwark of liberty,” but I know of no sophisticated analysis of its effects earlier than the one to be found in the Francophone de Lolme. De Lolme, a citizen of Geneva, was impressed by the way a free press can make three kingdoms into one small town. Indeed he maintains public debate in the press has all the advantages and none of the disadvantages of a popular assembly; de Lolme, a former disciple of Rousseau’s, was eager to stress the ease with which direct democracy degenerates into tyranny. He is clear, however, that no tyranny can withstand a free press—and the original purpose of his book, first published in Holland for sale in France, was to undermine French absolutism by exploiting this very freedom. De Lolme fully recognized the power of the press as a “mighty political engine,” capable of being a check in its own right.
Then there is a third meaning of “check,” meaning to interrupt or delay. Here “check” is paired not with “control” but with “clog,” a word which originally meant a hobble and had come to mean any obstacle or brake. In 1698–99 there are repeated references to the opposition’s desire to “clog the wheels of government.” In 1752 we find Thomas Pownall attacking the contemporary working of checks and balances in the British constitution: “Thus it becomes the interest of the democratic part to be a constant clog and check upon the measures of the administering power, and to oppose themselves to every new exertion of its influence.” Paine, in Common Sense, chose to understand the theory of constitutional checks in this sense:
For as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern; and though the others, or a part of them, may clog, or as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavors will be ineffectual, the first moving power will at last have its way, and what it wants in speed is supplied in time.
Speed, of course, might be required for good government, and in Massachusetts those who agreed with Paine that there should be only a single legislative chamber complained that senates “have formerly been a check or clog to business of consequence, requiring dispatch.”
American advocates of bicameralism replied that it was important for one legislative chamber to check another, and since, if both chambers represented the people, the purpose of such a check could not be to balance competing interests, it must be to delay hasty decisions. (Although one did not need to be an American to reach such conclusions—de Lolme had already defended bicameralism in similar terms.) In South Carolina in 1784, for example, it was maintained that the case for two representative bodies was that “the division in the legislative power seems necessary to furnish a proper check to our too hasty proceedings.” Benjamin Franklin was arguing in this tradition when he defended the idea of two assemblies, saying it was “like a practice he had somewhere seen, of certain wagoners, who, when about to descend a steep hill with a heavy load, if they had four cattle, took off one pair from before, and chaining them to the hinder part of the wagon drove them up hill, while the pair before and the weight of the load, overbalancing the strength of those behind, drew them slowly and moderately down the hill.” There was indeed general agreement that some mechanism to ensure delay was needed so that, in Madison’s phrase, it was the “cool and deliberate sense of the community” which prevailed.
Both checks and balances thus prove to be much more complex notions than one might at first suspect; nor should we be surprised that the linking of the two together presents its own complexities. In Moyle’s essay on the constitution of Sparta, the word “check” is frequently used, but “balance” is never used in its Polybian or Plutarchan sense. In Montesquieu the two ideas are kept radically separate: balance is invoked in the context of a discussion of the mixed constitution of the Roman republic as described by Polybius; checks in the context of a discussion of the separation of powers as exemplified by England. Indeed this, I believe, was the general pattern, and modern commentators have been led astray by the fact that it is Adams who first uses the phrase. Manin, for example, concludes that the idea of “checks and balances” develops out of the idea of a mixed or balanced constitution (advocated by Adams) and allows for the active influence of one branch of government on another, while the alternative is the idea of the separation of powers, which provides only for passive or negative “checks.” The fact that the idea of a check is here recognized as peculiarly belonging to one tradition while “checks and balances” is supposed to derive from the other suggests confusion in the argument. In fact the idea of checks and balances implies the bringing together of two analytically and historically distinct traditions, that of the mixed or balanced constitution (a tradition in which the word “check” plays no part) and that of the separation of powers (a tradition which makes no mention of balances).
This argument is supported by the second occasion (as far as I know) on which “check” is used as a political term, in Nedham’s True State of the Case of the Commonwealth (1654) when it is immediately counterposed to “balance.” Nedham is formulating the first uncompromising argument for a separation of powers (made possible by the existence of an actual separation in the Cromwellian-written constitution, the Instrument of Government), and complaining that the Rump Parliament’s proposal for biennial Parliaments would have placed “the legislative and executive powers in the same persons . . . by which means in effect they become unaccountable for abuses in government. . . . And how easily abuses might have been justified in a parliamentary way, is apparent enough; seeing an opportunity was given in that bill, to the next or any succeeding Parliament (no manner of balance or check being reserved upon them) by claiming an absolute authority to be in themselves, for ever to have continued the power (if they pleased) in their own hands. . . .” At first sight it might seem as if the words “balance” and “check” are here being used as equivalent terms: and indeed when Cromwell linked the terms together in 1657 they seem to have been assumed to be equivalents. But they may equally have been meant as alternatives. By the word “balance” it may be that Nedham meant to invoke the powers of the monarch and Lords within the mixed constitution (which included the monarch’s power to dissolve Parliament); by the word “check” he may have meant to invoke the power of the Protector under the Instrument of Government to veto unconstitutional legislation. If so, the word “check” was being put to use to explain how power would be limited within a constitution where powers were separated.
Nevertheless, it was tempting to see the English constitution as embodying both a separation and a balancing of powers, and it was easy to slip into using “check” and “balance” as synonyms. As Toland put it, “All the world knows that England is under a free government, whose supreme legislative power is lodged in the King, Lords, and Commons, each of which have their peculiar privileges and prerogatives; no law can pass without their common authority or consent; and they are a mutual check and balance on one another’s oversights or encroachments.” (This led directly to an appeal to the authority of Polybius.) We have seen Bolingbroke also trying to bring together the ideas (but not the language) of both traditions by stressing the constitutional dependency and independency of both branches of government: first published in The Craftsman in 1730, his argument was republished in 1743 in Remarks on the History of England. In the same year in Spelman’s preface to his translation of Polybius’s fragment on the balanced constitution, check and balance once again occur in close proximity, as if virtual equivalents.
But why did Toland’s phrase not catch on as Adams’s did? In 1752 Thomas Pownall attacked those “that talk of balance and counterbalance, of one power being constitutionally a check upon another; and that it is constitutionally the duty of these to pull different ways, even when there is no real matter of difference, yet to preserve the equilibrium of power.” Now this is not the old doctrine of the balanced constitution which is under attack, for that had always insisted that the precondition for equilibrium was coalition making and trimming; what is being attacked here is the new Bolingbrokean doctrine, later to be Adams’s doctrine, that the three powers can pull in separate, independent directions and yet establish an equilibrium, and it is this new doctrine which brings the idea of the balanced constitution close enough to the idea of the separation of powers for checks to be routinely identified with balances. Blackstone, we have seen, moves seamlessly from a discussion of checks (first the independent capacity of Commons, Lords, and King to veto legislation, and then the capacity of Parliament to hold the King’s agents to account) to a discussion of a triangle of forces. But in Blackstone’s account the three forces result in movement, not equilibrium. This way of thinking did not lead naturally to a language of checks and balances, or even of “checks and balance,” the phrase Noah Webster uses in 1787. In order to understand the power of the phrase, we will need to look more closely at Adams’s Defence.
We can now see that Adams’s phrase involves a further puzzle, beyond the bringing together of two words that belong to very different intellectual traditions: the use of balances in the plural. For most previous writers there had been one balance of forces (as in Polybius and Swift), which trims the ship of state and sustains the mixed constitution, and several checks. What (other than syntactic parallelism) invited the reference to balances in the plural? It seems clear the shift was thought to be particularly appropriate in the context of limits on the power of the legislature: The Federalist refers specifically to “legislative [or ‘legislature,’ in the first printing] balances and checks,” in a list of a series of principles to be adopted in any well-constructed constitution, and an exactly equivalent phrase had been used by Gouverneur Morris in 1776: “The authority of magistrates is taken from that mass of power which in rude societies and unbalanced democracies is wielded by the majority. Every separation of the executive and judicial authority from the legislature is a diminution of political and increase of civil liberty. Every check and balance of that legislature has a like effect.”
Later Adams was to identify eight balances in the Constitution of 1787: between the states and the federal government, between the House of Representatives and the Senate, between the executive and the legislature, between the judiciary and all the other powers, between the Senate and the president in appointments to offices and treaties, between the people and their representatives, between the legislatures of the states and the senators selected by them, between the people and the electoral college which selected a president. Here some of these balances are clearly what would once have been called checks (between executive, legislature, and judiciary). The result (for Adams was no admirer of the new Constitution) was “all this complication of machinery, all these wheels within wheels, these imperia within imperiis.” I have reproduced these eight in an order of my own, because the first five seem to me a logical consequence of a mixed constitution and a separation of powers within a federal system. But the last three are all cases of a balance between electors and elected, and this involves an idea of balance unknown to Polybius, Swift, and Montesquieu. It is to this idea of balance, central to any account of legislative balances and checks (including that which appears in The Federalist), that I now turn.
There is a simple sense in which at every election the electorate hold their representatives to account and replace those who have failed to give satisfaction. This fundamental check is, we might say, the essence of the liberty to be found in representative government. Peers, Bolingbroke said, are accountable to God, but members of Parliament to their constituents. According to the anti-Federalist author who called himself Centinel, in England “the only operative and efficient check upon the conduct of administration, is the sense of the people at large.” But the relationship between the electorate and their representatives is a complex one, and I want to pause over two texts that made a serious effort to analyze it. The first is Edward Spelman’s short but incisive introduction to his translation of Polybius on balanced government. Spelman’s text was twice reprinted in English (the last edition being known to John Adams, who quotes at length from Spelman’s translation in the Defence), and later translated into French for publication during the Revolution. I have already suggested that it was one of the few works that linked check and balance together as equivalents, and it may have played an important part in developing a convenient language for the notion that liberty is primarily established by power restraining power. It is also the first unambiguous defense of party in English, the consensus until then having been that, since there was a single common interest, parties are in principle unnecessary and that where there are two parties there must be at least one faction. Spelman, by contrast, argues that “In all free governments there ever were and ever will be parties,” and that party conflict is not an effect but a precondition of liberty. The cities of ancient Greece were divided into supporters of aristocracy and democracy, but “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.”
Party thus becomes a crucial mechanism for checking the power of government:
Whatever may be the success of the opposer, the public reaps great benefit from the opposition; since this keeps ministers upon their guard, and, often, prevents them from pursuing bold measures which an uncontrolled power might, otherwise, tempt them to engage in. They must act with caution, as well as fidelity, when they consider the whole nation is attentive to every step they take, and that the errors they may commit will not only be exposed but aggravated.
But Spelman also provides a subtle account of party, distinguishing sharply between the motives of a party’s supporters who want to see certain policies adopted and its leaders who want power. The thirst for power provides the leaders with a stronger incentive than any disinterested concern for the public good, and opposition provides a training ground for future rulers. There thus exists an inherent tension between a party’s leaders and its followers, for the leaders have an incentive to sacrifice their principles to attain power, while the followers, who will never be rulers, have an interest in seeing the powers of government restrained. A simple confirmation of this theory in Spelman’s view is the complete failure of the political elite to repeal the Septennial Act and institute annual elections: although the whole nation would benefit from such a measure, politicians as a class have an interest in limiting the electorate’s ability to control their actions. A similar account appears in de Lolme’s Constitution of England, for de Lolme argues that politicians rely on popular support to give them access to power, but as they acquire power and status, as they are promoted for example from the Commons to the Lords, the people cease to trust them and become convinced that their interests are no longer at one with those of their rank-and-file supporters.
In 1787 the proposed federal Constitution for the United States necessarily multiplied both checks and balances, for it established a new constitutional tension, that between federal and state powers. Adams’s new phrase immediately became the language of the hour. But well before then a new notion of balance had come into existence to supplement the Polybian and Plutarchan balance between monarchical, aristocratic, and democratic institutions. This was the notion of a natural balancing mechanism at work, first of all between parties and then between the governing elite and those they represent. This new conception of representative government made it easy to recognize that there were several balances at work as well as several checks. Neither Spelman nor de Lolme coined the phrase “checks and balances,” but this is a mere accident of history, for the phrase accords well with what they wanted to say, and their notion of a balance between electors and elected is central to Adams’s list of the different balances at work in the American Constitution.
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 shortly: 3. AUTOMATIC MACHINERY, 4. ELECTIVE DESPOTISM]
Evolutions of social order from the earliest humans to the present day and future machine age.