Checks and Balances and the U.S. Constitution

• In Event: The Structural Mechanics of Constitutionalism

Abstract

The doctrine of checks and balances is conventionally understood as a composite doctrine of liberal democratic constitutionalism; with checking (limiting the degree and scope of governmental activity) appended alongside balancing (a theory of how the power of governing institutions ought to be arrayed) as if the two were reconcilable halves of a single, coherent doctrine. The first part of this article distinguishes checks from balances in the constitution of the federal government and argues that there are critical conceptual distinctions between the two, and that the framers of the US Constitution differed in their relative prioritizations of one of the other. Second, and elaborating on this distinction, this article also distinguishes the separation of powers, which address the horizontal distribution of powers, and federalism, which addresses the vertical distribution of power. Here too, the framers of the Constitution differed in their relative focus on checks and balances. Understanding these differences allows us to appreciate the Federalists’ creative synthesis of checks with balances to justify a new separation of powers theory and an even more novel federal arrangement they called a “mixed government—one that the world up until then had not seen. Because Publius was so successful in his creative synthesis, we no longer see checks and balances as separate doctrines, but that reflects the framers’ considerable contribution to the history of political thought.

Author

• Elvin T. Lim, Singapore Management University