Chapter 4
What Happened to Checks and Balances?
What happened to checks and balances?
How could such extraordinary changes have come about? Didn't the Framers carefully work in a system of checks and balances to prevent gradual distortion of the constitutional system?
The answer, of course, is that they did. But they also recognized that the checks and balances were like weapons in the hands of the people, and that they would be no protection if the people did not use them.
The Framers designed the best freedom preserving system they could, but they realized that whether it functioned successfully would depend on what they referred to as the civic "virtue" of the people. For example, James Madison declared:
No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them. (Elliot's Debates, Vol. III, p. 537)
What happened to some of the major checks and balances protections that might have been used to prevent Supreme Court usurpation?
The failure of Congress.
Congress should have impeached Supreme Court justices or at least deprived the Supreme Court and lower federal courts of jurisdiction to hear cases in areas where the Supreme Court has most egregiously distorted the Constitution.
But Congress did not do so partly because it has wanted to be freed from the limitations of the Constitution and partly because it has been a willing participant in the spoils in the form of increased ability to buy support with political patronage.
The people did not demonstrate sufficient virtue to insist that Congress do its constitutional checks and balances duty. [p. 29]
The states disarmed and bribed.
The states should also have strongly opposed what the Supreme Court has done, but they have also been ineffective.
This has been partly because the 17th Amendment deprived them of one of the principal weapons given them by the Framers to keep the federal government within its limited powers. That weapon was the states' representation in the Senate where they could control what laws are passed by Congress and who is appointed to the Supreme Court.
Another reason the states have not opposed federal encroachment as strongly as they should have is because they have also been bought off with "free" federal dollars.
Again the people were asleep at the switch. They not only adopted the 17th Amendment that deprived the states of their principal checks and balances weapon against federal encroachment, but they also seem to have been willing recipients of apparently free money from the federal government.
The people misled.
The people should have risen up in indignation, but did not do so. There were a number of reasons for their inaction, including the following.
The people had been taught disrespect for the Framers and their ideas.
They had been taught that the Constitution is outmoded because it was designed for an 18th Century agrarian economy.
They had been taught that an appropriate economic and political system for our modern society requires much greater government involvement.
They had been taught that it is necessary to increase the power of the federal government to enable socialism to function effectively so the people could share in its benefits.
They had been taught that the Constitution was being used to block the implementation of the new and better system.
They were beginning to develop a vested interest in a larger federal government as a source of financial benefits.
They had been gradually manipulated away from their religious moorings toward seeking worldly pleasures. [p. 30]
They had been gradually conditioned to be tolerant of increasingly heavy doses of what previously had been regarded as sinful and had begun to partake of those activities themselves to an increasing extent.
They had been gradually conditioned to be self centered and unwilling to put forth significant effort to understand and preserve freedom.
Eventually most people reached the point of being so diverted by sports and entertainment that they just didn't know what was going on.
Predominance of political parties.
The Framers of the Constitution considered political parties a grave danger to freedom. They hoped there would be sufficient national righteousness that government officials would act like independent statesmen seeking what is best for the country, rather than like party politicians seeking to expand their party's power.
An example of the Framers' concern about political parties is found in George Washington's Farewell Address in which he warned us "in the most solemn manner against the baneful effects of the Spirit of Party." The following are some extracts from that address describing some of those effects:
It exists under different shapes in all Governments . . . but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.
It opens the door to foreign influence and corruption, which find a facilitated access to the Government itself through the channels of party passions. Thus the policy and the will of one country, are subjected to the policy and will of another.
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension . . . is itself a frightful despotism.—But this leads at length to a more formal and permanent despotism.—The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an Individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty. [p. 31]
Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of Party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
Serious as are the dangers mentioned in the above statements quoted from George Washington's Farewell Address, there is another danger that impinges directly on the system of checks and balances itself.
It will be recalled that the concept of checks and balances is based on a fundamental principle expressed by James Madison in Federalist Number 51 as follows:
The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others . . . . Ambition must be made to counteract ambition.
In other words, for checks and balances to work, a politician's personal ambition must be advanced to the extent he upholds the Constitution and prevents encroachments. Similarly his personal ambition must be impeded if he fails to do so.
But that fundamental concept underlying the very principle of checks and balances is undermined by political parties. This consequence arises out of the fact that, under a political party system, a person's ambition is best served by doing the will of the party, even when that will involves supporting policies and programs that undermine the Constitution.
In this way the predominance of party politics has undermined and to a large extent neutralized the very operating principle that makes possible an effective system of checks and balances.
Withdrawal of the spirit of the Lord.
There is another possible explanation that should be mentioned concerning the people's failure to take effective action against the Supreme Court's usurpation of authority to change the Constitution. That is that unrighteousness has become so pervasive that the Lord has withdrawn his spirit from the United States.
Without the influence of that spirit to enlighten their understanding, the people of the United States find it difficult to comprehend the way the inspired Constitution of this land is supposed to function. Hence they take and tolerate actions they should not because they don't see what else they can do. [p. 32]
Importance of the few.
The failure of the carefully designed checks and balances to prevent Supreme Court usurpation emphasizes the importance of the few willing to inform themselves and to seek to influence others.
While the preservation of freedom depends on the numerical and voting strength of the many, the Framers clearly recognized that the many are influenced by the dedicated few.
It should be remembered that the Founding Fathers were relatively few. In fact, the Constitution would never have been adopted if the dedicated few had not extended themselves to draft it and to secure its adoption.
It is hoped that those who believe the words of the scriptures (for example Ether 8:23 and D & C 98:4-7), will extend themselves as part of the dedicated few of our day. [p. 33]
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