Author: Erin Robert

Introduction

Checks and balances refers to a system of government allowing separate government branches to “check” or overturn acts of one branch if those acts are unconstitutional. Checks function to “balance” governing power equally among branches. The U.S. federal government’s system of checks and balances exists in the powers shared between its three branches of government which are the executive, legislative, and judicial branches. The U.S system of checks and balances serves democratic governance by functioning to protect individual rights and stop any one part of the government from becoming too powerful. 

Historical Motivation

American colonists desired a government that functioned to protect individual rights. In colonial America, the British government enacted laws subjecting colonists to taxation without representation. British authorities stationed in the colonies are also widely documented to have regularly violated colonists’ individual rights. As a result, in 1775, colonists revolted. Their goal was to establish a government that functioned without leadership by one all-powerful person. In doing so, they aimed to establish a government featuring a system of checks and balances—a government comprised of multiple facets, any one of which could step in to overturn acts of another if such acts were likely to result in the violation of citizens’ individual rights. The 1787 Constitution serves this desire by creating a government with three branches and awarding each branch certain governing powers and certain checking powers. 

Judicial Branch

The judicial branch consists of the federal judiciary: the Supreme Court, appellate courts, and district courts. The Constitution awards the judicial branch the power to:

1. Interpret how federal laws are meant to be applied by their authors,
2. Determine whether a law aligns with our Constitution, and 
3. Apply it to individual cases. 

This power only applies to those laws which are tried in court as a result of lawsuits filed by citizens claiming their individual rights have become violated in their application. The Constitution requires that the Supreme Court’s interpretation of laws determine how district and appellate courts must henceforth apply that law to individual cases. This is insofar as their application must agree with this interpretation. The Constitution awards the judicial branch checking power over the executive branch in the form of their responsibility to overturn presidential vetoes they deem unconstitutional. An executive order is an act of presidential power to create a law without prior approval from Congress. 

Legislative Branch

The legislative branch consists of Congress i.e., the Senate and the House of Representatives. The Constitution awards the legislative branch governing power to draft (or “make”) laws, declare war, regulate interstate and foreign commerce, and control spending and tax policies. The legislative branch has checking power over the judicial branch in the form of a Congressional chamber’s ability to vote to impeach federal judges and in the form of their responsibility to determine the jurisdiction of federal courts i.e., to determine the types of cases federal courts can rule on. For certain disputes, however, the Constitution overrides the legislative branch’s capacity to determine jurisdiction and guarantees the Supreme Court original jurisdiction. Examples of such disputes are those between U.S. states. The legislative branch also has checking power over the executive branch through the ability to vote to impeach the president and/or members of their administration and in the form of their responsibility to vote to pass treaties proposed by the president, determine Presidential nominations, and determine the current budget for executive offices

Executive Branch

The executive branch includes the president and their administration. The Constitution awards the executive branch the governing power to enforce laws. The executive branch has checking power over the judicial branch in the form of an ability to nominate Supreme Court judges when there is a vacancy. The executive branch also has checking power over the legislative branch in the form of an ability to overturn laws that Congress has recently approved. This act is otherwise known as a presidential veto.

The Bill of Rights comprises the first ten amendments to the U.S. Constitution and functions to protect citizens’ access to individual rights. 

John Locke’s Conception of “Individual Rights” and the Purpose of Government

17th-century British philosopher John Locke believed that people are equal in that they are each born with the same “natural, inalienable” rights. Locke defined “natural rights” as rights people have because of one’s personhood. Natural rights are inalienable, meaning they cannot be given or taken away. He otherwise referred to natural rights as individual rights. 

Locke believed individual rights can be violated through others’ actions. For example, imagine a king who penalizes or threatens to penalize citizens for speaking ill of government functioning. According to Locke, this king violates citizens’ individual right to liberty. He considered a liberated person, in the context of a law-bound society, as one living free from governance by political authorities other than political authorities which citizens freely vote into office. Because Locke believed people’s equality to be grounded in individual rights, he would consider this king’s violation of citizens’ liberty as tantamount to oppression. 

Accordingly, Locke believed the purpose of government was to protect individual rights. He saw people as “naturally” equal which meant people own themselves and their property. He also thought people join societies to ensure their own safety and the protection of their individual rights by surrounding themselves with others who desire the same security. From these ideas, Locke concluded the purpose for people to establish a government is to protect individual rights, which he summarized in writing as “life, liberty, and property”. He concluded that if one’s government does not function to protect individual rights, citizens are justified in acting to disassemble it. 

American Colonists’ Oppression by the British Government

U.S. colonists decided to establish a government respecting individual rights. The U.S. colonies were established on British-owned North American land. In exchange for permission to settle in North America, the Monarch required colonists to continue living under British law. In 1765, Britain enacted the Stamp Act which required colonists to pay taxes on imported business and legal documents, pamphlets, books, and newspapers. British authorities stationed in the colonies largely enforced this act by warrantlessly invading colonists’ homes to determine if a colonist’s stamp-act relevant items were obtained through illegal import. British authorities stationed in the colonies also regularly denied colonists’ freedom of speech, press, and assembly and regularly arrested colonists for arbitrary reasons. Colonists arrested for arbitrary reasons were often then subjected to excessive fines and bail. In addition, it was common for British government authorities living in the colonies to board in colonists’ homes without the homeowner’s permission. 

Colonists resented the Stamp Act because it required them to pay taxes to a government in which they lacked representation. Colonists also resented British authorities stationed in the colonies for violating existing English laws protecting colonists’ individual rights. Adhering to Locke’s philosophy on individual rights, colonists revolted against the British government. They aimed to sever political ties with the British to enable self-government for the sake of escaping their subjection to oppressive rule. 

The (1776) Declaration of Independence and the (1781) Articles of Confederation

The Declaration of Independence declared colonists’ support for Locke’s philosophy by announcing colonists’ desire to sever political ties with the British and enable self-government. It defended this claim by listing ways British authorities regularly violated colonists’ individual rights. Author Thomas Jefferson summarized colonists’ individual rights deserving of protection as “life, liberty, and the pursuit of happiness”. 

The (1787) Articles of Confederation established the U.S. as a new nation by awarding powers to a federal government. The Articles did not award the federal government powers to tax citizens, meaning the United States could not create or finance a military. Congress chose to not to do so to limit the power the government could potentially use to oppress citizens. Many citizens responded to the articles with concern that the federal government’s inability to maintain a military left them vulnerable. To address these concerns, congress members gathered in Philadelphia for the Constitutional Convention later that year. Here Congress created the 1787 draft of the U.S. Constitution which laid out plans for government functioning more capable of protecting citizens’ individual rights from dismissal by foreign entities.

The (1787) U.S. Constitution

The 1787 Constitution instituted a U.S. federal government with three tiers, creating a system of checks and balances. It left out mention of powers that do not belong to the federal government as well as mention of the individual rights the federal government is required to respect. These features of the Constitution stem from negotiations during the Constitutional Convention, which produced two political parties: federalists and antifederalists. Both parties wanted to establish a U.S. federal government that incorporated a system of checks and balances and would be unable to ignore individual rights. 

• Federalists believed a strong national government would best protect citizens’ individual rights. Accordingly, federalists supported the construction of the 1787 constitution. Federalists also thought the act of adding a bill of rights to the constitution would be superfluous as they believed the construction of the 1787 constitution would protect individual rights necessarily. 
• Antifederalists believed a bill of rights would be categorical to protect individual rights. This is because they believed majority groups would inevitably attempt to oppress minority groups.

Ratification of the 1787 Constitution required the support of all thirteen states. Congress understood states with majority antifederalist populations would likely only agree to the Constitution if a bill of rights were added. To enable a more immediate enactment of a constitution, Congress promised these states the eventual addition of a bill of rights. On September 17^th of 1787, and with antifederalist states having agreed to Congress’s offer for compromise, Congress enacted the U.S. Constitution. In 1791, Congress added the Bill of Rights.

Individual Rights and the U.S. Bill of Rights

The following are summaries of each of the ten amendments composing the Bill of Rights. 

1. Congress must not create laws barring citizens’ right to freedom of religion, speech, assembly, and petition. 
2. Citizens may own and carry a firearm to enable the existence of a functioning U.S. militia. 
3. During peace or war times, soldiers are prohibited from lodging in homes unless permitted by the homeowner. 
4. Government authorities must not subject citizens to unreasonable searches and seizures or subject them to arbitrary arrests.
5. Citizens on trial for a crime have a right to (1) due process of law, (2) freedom from government coercion to incriminate oneself, and (3) freedom from double jeopardy.
6. Citizens accused of a crime have the right to (1) a speedy trial, (2) a lawyer, (3) a jury whose members lack the motivation to agree with either the plaintiff or defendant, (4) know the identity of their accuser, (5) know the allegations made by their accuser, and to (6) know any evidence that has been brought forward to support accusations made against them.  
7. Citizens accused of a civil crime have the right to be trialed for that crime with the use of a grand jury. 
8. Government must not subject citizens to cruel or unusual punishment or excessive fines and bail. 
9. The fact that citizens have certain individual rights which are stated in the Constitution does not mean that citizens also do not have other rights which have yet to be spelled out in a governing document.
10. The federal government only has those powers given by the Constitution. Powers that the Constitution does not list effectively belong to either state governments or to or individuals.