“If men were angels, no government would be necessary. If Angels were to govern men, neither external nor internal controls on government would be necessary.”

Four months before it was ratified, James Madison again defended the Constitution of the United States in Federalist 51, published February 6, 1788. The primary fear of those wary of surrendering a portion of their state authority to this new federal constitution was that some powerful groups and interests would dominate the new central government, and inevitably lead to the oppression of people and interests less powerful or less numerous. In Federalist 51, Madison assured that checks and balances, having been woven into The Constitution, would curtail the ability of any section or collective sections of society to successfully oppress any others.

Those apprehensive detractors have proven, over time, to be more prophetic than most wish to admit, but only due to two primary failures:
• The failure of the states and the branches of government to exercise their authority to restrain each other.
• The failures inherent in the unanticipated two-party system.

Let’s take a look at how checks and balances were designed to protect us from oppression and what’s
gone awry.

MINIMAL RELIANCE ON THE OTHER PARTS OF GOVERNMENT

Madison explained that if any section of government was reliant on another for pay, election, civil rights, or their ability to hold their positions, that their dependence on the other would make them subservient to the other’s will. Therefore, judges would have lifetime tenures in order to break them free from reliance on their appointers, presidents would be able to veto the legislature, states could refuse harmful and unconstitutional federal laws, and representatives would be privileged from arrest while actively serving. This check has proven to likely be the best-preserved check and balance of The Constitution, yet not without attrition due to a destructive two-party system. Subservience is now required of all candidates through complete allegiance to either the Democrat or Republican parties, even if elected as an Independent. By reading the rest of Madison’s twenty-nine Federalist essays and their contemporaries’ writings, we can be confident this flaw was neither imagined by him nor the other founding fathers.

UNALLIGNED MOTIVES

“This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.” Madison also wrote, “Ambition must be made to counteract ambition” in regards to the divisions of power. Throughout Federalist 51, he points the reader to the dialectical nature of personal interests. It was only through the presence of many separate interests and the unique ambitions of their promoters that a continual defense of liberty could exist. Now, though, all modern representatives are completely reliant on their respective political parties. For one to vote in promotion of his or her ambitions would often guarantee a fall from grace with his or her overlords: The Democratic National Committee or the Republican National Committee. This “sentinel of public rights” is dead.

LEGISLATURE PREDOMINATES

“But it is not possible to give to each department an equal power of self defense. In republican government the legislative authority, necessarily, predominates.” George Washington, our first Chief Executive, signed an average of one executive order per year. The following six presidents decreed even fewer. By the time Franklin Roosevelt left office, he had signed 3,721 executive orders, averaging 307 per year. The two legislative branches have not only allowed this usurpation and concentration of power, but have often encouraged and codified it, leading to an ever-increasing power of the executive branch.

Another way the executive has become the main power within the United States Government, is in the use of unelected bureaucrats to make and enforce rules laws as they see fit. There are hundreds of departments, sub-departments, agencies, and “Offices of” that fall under the Chief Executive’s modern rule. Each of those has head bureaucrats that can enforce (under threat of criminal penalty) burdensome and arbitrary de facto laws that never crossed a legislator’s desk or a voter’s ballot.

The legislative authority no longer predominates the federal government of this republic. Instead, the autocratic rule increasingly predominates, with detrimental consequences for every American citizen.

STATES’ RIGHTS

“In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at
the same time that each will be controlled by itself.”
The check and the balance created by this mutual control Madison promised, was not solely among three branches of federal government, but just as importantly, each individual state government against the federal government.

For many decades, though, states have generally ignored their power to check the federal government, save the left’s pet projects, such as state legalization of federally prohibited drugs. Recently, however, we are witnessing a new rise of the assertion of that power. For example, new bills being drafted and enacted in Missouri, Montana, North Dakota, Florida, and others defy existing and future federal laws, such as those violating the second amendment. For this essential counterweight to the federal power to be effective, though, these new legislative acts must only be the gateway to a far greater movement of mutual control.

Each state legislature must immediately make a bold assertion of non-consent to all laws and regulations that originate from outside of the very limited and enumerated powers forfeited to the federal government in the Constitution of the United States.

Madison believed that the only reason we needed any government was that we humans are not angels. As mere mortals, it is our nature to seek one’s own good first. In that endeavor, humans tend to oppress each other when power or population provide the opportunity. So, he proposed that as this nature applied to those elected and appointed to government, the division of power amongst different groups would mitigate the capability of any one of those groups to impose their self-interest on others. A separation of powers was the only way to subdue humans’ un-angelic nature. Over the course of 233 years, though, these safeguards have eroded with fatal consequences to the liberty our government was
formed to protect. As Madison made clear in the last paragraph of Federalist 51, “…a will independent of society itself” must be imposed, so that no people are at the mercy of temporary emotion and ambitions, however seemingly righteous or attractive. The American people must demand the restoration of true checks and balances. Party allegiance must become subservient to ambitious representation of the constituency, the unconstitutional quasi-autocracy of the executive office must be adamantly defied, and states must assert their rights immediately.

Henry Sherman