The Key 2 Liberty involves learning the principles of freedom for yourself and then sharing your knowledge with others.

Checks and Balances

As Ben Franklin exited Independence Hall after the Constitutional Convention he was confronted by a woman who asked him, “Well, Doctor. What have we got, a republic or a monarchy?” He quickly replied, “A republic, if you can keep it.” From this statement it is safe to assume that Ben Franklin was at least a little skeptical whether or not a republic could effectively govern the lives of a free people. A republic is a country where the people control the operations of the government through elected officials. In order for a republic to operate smoothly the people must be knowledgeable about how a republic should function to enable them to elect the best people to the positions of government to carry out its duties.

The Founders were definitely aware of the many frailties of human nature and designed our Constitution so that the responsibilities of government (power) would not be concentrated in the hands of one person or a few people but instead would be distributed among many people. The powers of the government of the Unites States of America are divided vertically into the federal and state governments and then each level is further divided horizontally into three branches; legislative, executive and judicial. Each level and branch is assigned specific duties to take care of and must not interfere with the operations of the other levels or branches in order for the whole system to operate efficiently and best be able to protect the lives and property of the people which is the primary purpose for a government to exist in the first place.

Thomas Jefferson expressed his feelings on the amount of trust that should be given to the people that manage the government when he wrote, “It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights… Confidence is everywhere the parent of despotism. Free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power… Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go… In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” – Kentucky Resolutions. Bergh 17:388. (1798.) [The Real Thomas Jefferson. p. 596]

The magnificence of the Constitution is the separation of the levels of government (federal and state) into three distinct branches; legislative, executive and judicial. Each branch is assigned specific duties and must be independent of the other two branches as to how they perform their duties. The Founders did, however, place several checks and balances in the Constitution to make sure that each branch remains independent of the other two branches and cannot become a dominant branch. There are also checks and balances to make sure that the federal and state levels of government only take care of the specific duties that are assigned to each so that they do not encroach on the responsibilities of each other. There are also some additional checks placed on the federal government to further guarantee the rights of the people, the primary purpose of any government.

Checks and balances between the branches of government:

Checks on the executive branch by the legislative branch.

The Congress can override a presidential veto of a bill if each house passes the bill by a vote of two thirds. If the elected members of the people desire a bill to become a law it should be able to become a law if there is strong support for it even if the president disagrees with it.
The Senate must approve all treaties negotiated by the president with foreign nations by a two thirds vote. This gives the most experienced and stable house of the Congress the power to disapprove of any treaty with a foreign nation that threatens the rights of the states or people.
The Senate must approve all appointments made by the president to the executive offices.
The Congress has the sole power to declare war. There is, however, a law called the War Powers Act of 1973, which is considered unconstitutional by many people, that in summary allows the president to authorize limited military action without approval from Congress if the conflict lasts shorter than 60 days.
The Congress has the power to appropriate funds for the operation of the government including the executive branch. If the executive branch attempts to usurp power from the legislative branch the legislative branch can defend itself by defunding certain provisions of the executive branch.
Although not an enumerated power, the Congress has the implied power of congressional oversight that gives them the power to investigate the operations of the executive branch. Using several different committees, the Congress is able to monitor and report on the actions of the executive branch and determine whether or not it is properly spending the taxpayer’s money that has been appropriated by Congress.
The Congress has the power to impeach and remove from office the president, vice president or any executive officer that is found guilty of treason, bribery or other high crimes and misdemeanors. The House of Representatives has the sole power of impeachment and the Senate has the sole power to try all impeachments. If the president is being tried the Chief Justice of the Supreme Court presides over the trial. No person shall be convicted unless two thirds of the members present in the Senate concur.
The Congress has the power to initiate amendments to the Constitution that could affect the composition or powers of the executive branch.
Congress has the power to take away powers granted to the president by legislation. Any power granted to the president by legislation passed by the Congress can also be taken away by legislation passed by the Congress. It will, however, most likely require a vote of two thirds in each house in order to be able to override a presidential veto.
Congress has the power to select the president (House of Representatives) and the vice president (Senate) in the event that there is no majority of electoral votes in an election.

Checks on the judicial branch by the legislative branch.

The Senate must approve all appointments made by the president for justices of the Supreme Court or judges of the lower federal courts.
The Congress creates the laws that determine the number of Supreme Court justices and structure of the federal court system. The Congress through legislation determines the number of federal trial and appellate courts, their jurisdictions (except for certain specific cases specifically listed in the Constitution) and the number of judges that serve each court.
The Congress has the power to impeach and remove from office any justice of the Supreme Court or any federal judge that is found guilty of treason, bribery or other high crimes and misdemeanors. The House of Representatives has the sole power of impeachment and the Senate has the sole power to try all impeachments. No person shall be convicted unless two thirds of the members present in the Senate concur.
The Congress has the power to appropriate funds for the operation of the government including the judicial branch. If the judicial branch attempts to usurp power from the legislative branch the legislative branch can defend itself by defunding certain provisions of the judicial branch.
The Congress has the power to initiate amendments to the Constitution that could affect the composition or powers of the judicial branch.

Checks on the legislative branch by the executive branch.

The president has the power to veto a bill that has been passed by the Congress before it becomes a law. The president is supposed to make certain that all legislation passed by the Congress is constitutional and veto it if it is not. The president also normally determines the overall agenda for the country and makes suggestions to the Congress to pass legislation needed to advance the agenda. If the president feels the agenda is not being followed he or she can veto the legislation that is in conflict with it.
The president has a large influence on the reelection of senators and representatives within his or her own party. The president can use his or her political power to sway the opinion of a senator or representative by not supporting the reelection of the senator or representative unless he or she helps the president with his or her agenda.
The president has influence on where money is spent for federal projects such as those for military bases or interstate highways. If the president feels he or she is not getting support for his or her agenda then the president can attempt to redirect funds from one state to another or congressional district within a state.
The president has the power during extraordinary occasions to convene both houses of Congress to take care of issues that could have a serious negative impact on the general welfare of the country if attending to the crisis is delayed until the next sessions of Congress.
The vice president is President of the Senate and gets to cast a vote in the event of a tie.
The president has the power to make recess appointments of executive and judicial offices in the event that the Senate is not in session to approve an appointment.
The compensation of the president cannot be diminished (or increased) while in office. The Congress sets the compensation of the president through legislation. If the compensation of the president is changed it does not take effect until the next president is elected and takes office.

Checks on the judicial branch by the executive branch.

The president appoints all justices of the Supreme Court and all judges of the lower federal trial and appellate courts. The president must get approval by the Senate for all appointments.
The president can refuse to carry out a judicial order if he or she believes it is in violation of the Constitution. Situations like this are extremely rare but further enforce the fact that each branch is to decide for itself the meaning of the Constitution and faithfully execute it. A few examples where this occurred are when Thomas Jefferson refused to commission a few judges who’s positions were created in a lame duck session of Congress and when Andrew Jackson refused to follow an order to remove federal troops out of Cherokee land in Georgia.

Link to Thomas Jefferson’s view on separation of powers

Checks on the legislative branch by the judicial branch.

The federal courts have the implied power of judicial review to determine whether the laws passed by the Congress are constitutional or not. Laws that are determined to be in conflict with the Constitution are declared unconstitutional and are then treated as null and void. State courts also determine whether or not the laws passed by their legislatures follow their state constitutions and if found to be in conflict can be declared unconstitutional at the state level. Federal courts can also find state legislation to be in conflict with the US Constitution and declare them to be unconstitutional. This is a check across a branch and level of government but nonetheless is an important check to make sure that the Constitution of the United States remains the supreme law of the land per Article VI of the US Constitution.

Link to Thomas Jefferson’s view on judicial review

Federal justices of the Supreme Court and judges of the lower federal courts serve for life. This cannot be changed by the Congress. Once a judge has been confirmed by the Senate he or she can only be removed by impeachment and a conviction by the Senate. If the Congress passes new legislation reducing the number of courts, Supreme Court justices or federal judges the existing justices or judges still get to finish out their life terms.
The compensation for a justice or judge cannot be diminished. The Congress can pass legislation to reduce the compensation of future justices or judges but cannot reduce the compensation of a current justice or judge.

Checks on the executive branch by the judicial branch.

Justices of the Supreme Court and federal judges serve for life and are therefore protected from the executive branch by not requiring them to be reappointed after serving a term of a set number of years.
The Chief Justice of the Supreme Court presides over all trials of impeachments of the president.
The federal courts using the implied power of judicial review can declare an action or executive order of the executive branch to be unconstitutional.

Checks and balances between the federal and state levels:

The responsibilities of the government of the United States of America has been intentionally separated into two different departments or levels, federal and state, each having its own set of responsibilities. Thomas Jefferson explained the relationship between the state and federal governments when he wrote; “The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the state generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man’s farm by himself, by placing under everyone what his own eye may superintend, that all will be done for the best.” – Bergh 14:421. (1816) [The Real Thomas Jefferson, p. 625-626]

Checks on the federal government by the states.

The Congress has two houses: The House of Representatives and the Senate. Each house checks the other as a bill cannot become a law until it passes both houses of Congress. Although this is actually a check within a single branch, when the Constitution was first adopted the House of Representatives protected the interests of the people and the Senate protected the interests of the states since prior to the Seventeenth Amendment the senators were appointed by the legislatures of each state. The ratification of the Seventeenth Amendment destroyed a very important check that the Founders designed into the Constitution. Prior to the adoption of the Seventeenth Amendment the states were able to protect themselves from usurpation by the federal government because the senators were beholden to the legislatures of the states. Now that they are beholden to the same people that elect the members of the House of Representatives they now make decisions based on getting reelected instead of protecting the rights and interests of the states.
Nullification – Tenth Amendment. The Tenth Amendment states; The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This means that the federal government only has the power to do the things that have been explicitly stated in the Constitution and that the states retain the power to do all other things that are not specifically granted to the federal government to do.

If a state believes that its power is being usurped by the actions of the federal government by legislation, executive orders, or judicial orders the legislature of the state can declare the actions of the federal government unconstitutional and then refuse to comply with the federal legislation or orders. Under a federal system such as the United States the states are sovereign countries of their own that have agreed to form a union to provide limited functions of government such as self-defense. If the states believe that the federal government is attempting to usurp power from them they have the final say in the matter. The states created the federal government! The federal government did not create the states! This is not the type of argument such as whether the chicken or the egg came first. The states clearly created the federal government and thus have every right to remove themselves from their voluntary agreement with other states at any time and have the supreme authority over the people within their sovereign state.

The fact that the Constitution is the supreme law of the land only applies if the agreement made between the states is being justly followed. It is a ridiculous idea that a state should be required to follow any legislation or order given by the entity that the state itself created if the state believes that its creation (the federal government) is in violation of the rules that it demanded it to follow when it was allowed to be created. Any state that has joined the union after the ratification of the Constitution has the same power over the federal government as the original thirteen states that formed the federal government. When a state is admitted into the union, it is admitted by the other states through Congress and is then treated as if the state was an original state of the union.

Thomas Jefferson describes this well; “The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but… by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes [and] delegated to that government certain definite powers, reserving, each state itself, the residuary mass of right to their own self-government; and… whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force… To this compact each state acceded as a state, and is an integral party, it co-states forming, as to itself, the other party… The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but… as in all cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” – Kentucky Resolutions. Bergh 17:379. (1798.) [The Real Thomas Jefferson, p. 635]

Before any amendments to the Constitution passed by Congress become effective they must be ratified by three fourths of the states.
Article V Convention. The states have the power to call a convention to propose amendments to the Constitution if two thirds of the legislatures of the states apply for a convention. This is considered to be a near worst case situation where the states feel they have to go around Congress in order to get a needed amendment passed. Most conservative people are highly against the states calling for a constitutional convention as the means of amending the Constitution.

Reasons why an Article V Constitutional Convention is not a good idea.

The role of the state legislatures in amending the Constitution is very limited in a convention.
State legislatures are given no power to decide what topics the convention will consider.
State legislatures have no power to write the desired amendment or amendments.
The states have no power to say that their applications to call a convention are ineffective if a convention might violate any restrictions and limitations which a state may want to include in their application.
Article V clearly gives the power to propose amendments exclusively to the convention.
Congress has no restrictions on how they must choose delegates for a constitutional convention. Elections are not guaranteed.

Checks on the states by the federal government.

The Congress determines where federal money gets spent. States that attempt to usurp power from the federal government risk being alienated by the Congress in how federal dollars get spent. The federal government can be very influential on the states. For instance, the federal government has on many occasions pulled the funding for federal highway projects for states that do not cooperate with certain policies of the federal government.
The federal courts can declare a law passed by a state legislature to be unconstitutional and order it to be treated as null and void.

Checks on the Government by the People

Broken Checks and Balances / Suggested Amendments