Separate Checks & Balances of Powers
By Martkos Terentilius Tarpeia
What is a government that represents the people? What does it mean for the three branches of government to be separate from one another? What are the proper checks and balances on the powers of each branch? What is the theory of legislative supremacy? These are the questions I address in this essay.
During the Stamp Act Crisis of 1765, the issue of “no taxation without representation” became a near daily debate between colonists, even loyalists like Daniel Dulany, and defenders of Parliamentary jurisdiction. The issue was not actually between representation and no representation but instead between two different types of representation. Parliament argued in favor of virtual representation and colonists like John Adams argued in favor of direct representation. Direct representation means suffrage or the right to vote in representatives directly to Parliament. These representatives would be made up of colonists, elected by colonists, for colonial interests. Suffrage is the only civil institution designed to gather the consent of the governed making it a requisite for a representative government to be legitimate. Parliament disagreed with the idea of direct representation; they argued that the King and Parliament had the authority to regulate the colonists as they deem fit due to the charters and various legislation that had been in effect for decades prior to the crisis. Since Parliament benefited from the colonies they claimed to have an interest in the success of the colonies which meant that they were looking after the interests of the colonies. To them, the colonies already had representatives in Parliament, themselves. This did not succeed in winning over the hearts and minds of the colonists as history has shown, neither is virtual representation consistent with the civil theory I have been developing in my various essays on political theory. Alexander Hamilton’s first published political essay, when he was still in college, was called A Full Vindication of the Measures of the Congress, &c. where he argues that the right of authority over another originates from that other person who is to be governed.
That Americans are intitled to freedom, is incontestible upon every rational principle. All men have one common original: they participate in one common nature, and consequently have one common right. No reason can be assigned why one man should exercise any power, or pre-eminence over his fellow creatures more than another; unless they have voluntarily vested him with it. Since then, Americans have not by any act of their’s impowered the British Parliament to make laws for them, it follows they can have no just authority to do it.
Representation must be consented to by those who are being represented and the only institution to achieve this is suffrage. Representation cannot be multiplicatively removed from direct representation without losing some legitimacy, even when those separations are delegated from direct representatives.
Suffrage is not the only requisite to a civil government, it is only the means by which a government is legitimate, the structure of government is also important in preventing the loss of consent. This structure includes a separation of powers to establish a system of checks and balances.
Separation of powers
The concept of separation of power, which can be viewed as specialization, is an old concept, one of the oldest concepts regarding government organization since the time when the most complex polity was a tribe. For the sake of efficiency, one person or one entity cannot do everything all by themselves. Native American tribes were misunderstood to be ruled absolutely by a chief but this is incorrect. There were several types of chiefs with different functions who worked separately but complementary to fulfill the needs of the tribe. This separation includes a liberty from interference from the other branches of government which in turn affects efficiency. The war chief did not dictate to the civil chief or the peace chief or the sachem nor the other way around. One branch, say the President, cannot and should not be able to lock the doors to the homes of each member of Congress to prevent them from passing legislation or impeachment or any other power Congress is delegated. Efficiency is not the only reason, there is also the concern of despotism as one branch may try to assume more power than they are granted. These two causes are why a system that separates power is a civil one. As one branch needs to control the others in order for it to gain power itself. This creates competition which distracts the branches from becoming despots over the people. At least this is the goal of separating power. Read the works of Adams and Madison to further grasp the purpose of separating power. I suggest reading John Adams’ Thoughts on Government essay along with James Madison’s essay called Vices of the Political System of the United States.
No government nor officer in government deserves any kind of power; power or rights are only relinquished by the people, with consent, to the government. The Congress, President, and Supreme Court, do not inherently hold specific powers to themselves, but instead are granted rights. The rights granted to the legislature are not automatically granted to the president or supreme court and a separation of power along with a system of checks and balances is an attempt at preventing the government from assuming more rights than what it has been granted. Remember the definition of civility from my other essays, it is when people are most free from natural and despotic threats.
Checks and Balances
Checks are negatives on power. The clearest example is the presidential veto which is a negative on Congress’ power to pass laws. I do not believe, unlike most political scholars, that influences on appointments or removals by the other branches are a type of check on power. Take the Supreme Court, their appointments, along with lower courts, are completely managed by the other two branches of government, specifically the President and the Senate. To me and according to the consistency of the civil theory I have been developing, this is not a proper separation of power nor a check on judicial power. Removals should still exist but they are not a check on power, only a check on arriviste individuals who might augment their power beyond their delegated jurisdiction. The institution of the Courts are not affected by the appointment or removal of a single judge. So what is an executive check on the judicial branch? The power of the pardon is.
If a federal court rules in a way that is inconsistent with justice, such as convicting or upholding a conviction of an innocent person, then the president can pardon the defendant. Of course, this isn’t how the power of the pardon is usually used, instead it is used by the president to get any friends or accomplices out of prison which is a gross violation of justice. To prevent misuse of the pardon, just as a veto can be overruled by the legislature, perhaps give the courts the power to overrule a pardon following some new due process. This due process could include having a court of several judges or a jury that have played no role in the conviction or the decisions of the court of appeals up to that point to decide whether or not the defendant should be pardoned; perhaps the legislature can get involved in this. This way the pardon is still a negative on the judicial branch without it being used irresponsibly. To recap, the executive has two negatives one on the legislature via veto, and the other on the judicial branch via pardon.
The courts have a negative on both the legislature and the executive in the form of judicial review. A law passed or a policy enforced can be deemed unconstitutional by the court. This judicial review is usually backed by trust and respect of the other two branches. Sure, they do not have to follow the judgements of the supreme court, but they usually do. This judicial trust is a healthy sign of a civil government since civility is built on trust. However, trust alone should not occur, but there must also be a system of verification or a due process that the other two branches should follow.
The legislature is a negative on the president by not passing any bills proposed by them or by overriding a veto. Some would include impeachment and conviction as a check but as I argued prior, I do not view removals as a check. The legislature currently does not have a formal negative power on the judicial branch, other than simply ignoring them. Such a negative could be this; since the veto is an immediate negative on the legislature, I see judicial review that decides a statute is unconstitutional as a veto in its own way. A post actus vetimus, to forbid an act after it is law and after a defendant proves a statute causes unjustified damages. Vetimus is the plural of veto BTW. Just as the legislature can override a veto it should have the power to override a vetimus. This legislative review would be a check on the judicial branch. The president must provide a reasoning to his decision just as the courts provide an opinion for its judgment. This judicial judgment or review (vetimus) should be sent to Congress, like how the presidential veto is, and be considered by a joint committee. This committee should decide what to do next. To accept the judgment and change the statute to make it constitutional by severing the unconstitutional section or clause, to ignore the judgment which it can already do which is the same as overriding it, or to repeal the statute in its entirety. These things are already present in the current system but they are not organized in a specific due process like that which I just outlined. I am pro-civil law and love due process instead of loosely organized powers so I am in favor of this kind of structural change.
Legislative Supremacy is the idea that of the three branches, the most powerful or highest in authority is the legislature. This means, or should mean, that the legislature has the final say in what the law is despite there being negatives against its initial bills. These negatives by the executive and judicial branches can be overturned by the legislature and only act as a cooling mechanism to the fervor of Congress, which is in itself a cooling mechanism to the fervor of the Will of the People. Reminisce what I said earlier, “Representation cannot be multiplicatively removed from direct representation without losing some legitimacy, even when those separations are delegated from direct representatives.” This means that the executive and judicial branches are less legitimate than the legislature since they are not elected directly by the people but instead by some other entity. It is consistent with the political theory I have been developing that these two branches ought to be elected directly by the people. Presidential and Vice Presidential elections ought to be voted by the people as a whole nation and in my previous essay on Supreme Reforms the Justices of the Supreme Court ought to be elected by the people within the Circuit Courts’ jurisdiction. Check out that essay for more details.
Below is a diagram of the branches and their checks and balances. In red is what I add to this usual concept. Just a clarifying note, not all judicial review is a vetimus; a vetimus is only the opinions of the court that determine a federal statute as being unconstitutional just like how a veto is only that which the President rejects for whatever reason he gives to Congress. The President should consider for himself the constitutionality of a bill along with considering whether or not a constitutional bill is rational to enforce. The Supreme Court, after a law has proven to have caused damages, should only consider the constitutionality of the law in question, not whether or not its rational or effective.
More Contemplation on Representation
Who ought to be represented by the government? Not a special interest, only the interest of the people as a whole, but how can we ensure that the majority do not put their peculiar interest before the interest of everyone as a whole? Just as separating powers or interests in the government helps prevent despotism, a similar separation of the people is also necessary to prevent errantism. For those who have yet to read my previous essays on political theory, the term errant is used to describe informal despots or people who err away from civility as opposed to tyrants who are formal officers who err from civility.
Political “thinkers” of today usually think that the House of Representatives is more representative than the Senate. This is not the case. There is no single perfect way to represent the interests of everyone at once. The House of Representatives represents the interests of the people within congressional districts, but what of the interests of the people within the whole state? These interests often differ from one another. An example would be the political makeup of Georgia following the 2020 election where the majority of congressional districts were republican while the majority of the people in the whole state was democrat, proof in the two Senators that were elected by the people statewide. This is what I call the minorizing of a majority; when this minorizing is done on purpose it is generally called Gerrymandering but it occurs even without intention. This minorizing is not representative of the people which is fixed by the Senate. However, States can be viewed similarly to congressional districts which means the Senate has the same issue on the nationwide scale as the House does on the statewide scale. The solution to the House's statewide problem was a statewide election which is also the solution for the Senate in the nationwide election. This solution is to make the only two nationwide positions elected by a nationwide election which means abolishing the electoral college and establishing a general vote nationwide for the offices of the President and Vice President.
All of this goes to show that there is no one perfect way to represent the people so the best way is a system of differing yet complementary election types. Someone might be in the minority in a congressional district but in the majority in the state or federal election. This means that there are overlapping minorities and majorities which control the government which prevents one minority or one majority from dominating the government. This separation of the people is also a check and balance of the interests of the people. It would be nice if everyone was on the same page as to what their interests are, but that is not the reality of the nation’s demographics. Proper politics after all is not what is the best theory but instead what is the best application for achieving civility.