How Shall America Live: The Urgency of Checks and Balances

In our continuing conversation about the defining question of the character of our nation—How shall America live? –we address the defining features of American Constitutionalism, first sketched in the 1760s by colonists who were outraged by English laws and practices that trenched upon their natural rights and rights as Englishman and the sweeping powers of King and Parliament. The expanding circle of complaints and protests, as readers know, fired the imaginations of those who sought separation from England and exploded in the Declaration of Independence, which declared to the world and to posterity, that a new nation was born, one grounded on the principles of life, liberty and the pursuit of happiness. Over the next decade, drafters of state constitutions trumpeted governing mechanisms that would grant and limit the powers of those elected to office in service of the citizenry. These fundamental assumptions were embraced, refined and extended by delegates to the Constitutional Convention, who unleashed the First Principles of American Constitutionalism.

The distinctive feature of American Constitutionalism—the doctrine of checks and balances—represents the engine, indeed, the workhorse, of our governmental system.  When it works well, it maintains the fundamental rights of the citizenry to self-governance, representation, adherence to and fulfillment of the enumeration of powers, essential limits on those serving in the legislative, executive and judicial branches, protection of civil rights and civil liberties, equal protection of the law and, certainly, voting rights. In sum, the doctrine of checks and balances represents the guarantor of government of, by and for the people, the essential rationale of the American Revolution.

When the system of checks and balances is not functioning well, when it is rendered ineffective by the lapses of those at the helm, the men and women vested by law with powers and responsibilities to turn the wheels of our constitutional democracy, anything can happen. Our rights and liberties can be trampled, limits on power ignored and violated, the allocation of powers approved and authorized by the people in the ratification of the Constitution and subsequent amendments to the Constitution–the exercise of popular sovereignty—shredded beyond recognition, and, of course, the rise of an authoritarian president. 

The collapse of checks and balances can be seen in the misappropriation of tax dollars for personal presidential projects not authorized by Congress, ICE agents roaming  the streets of blue and purple states, acting far beyond their initial mission and purpose of border control to break into homes of citizens without adequate search warrants, assaulting and killing Americans, without accountability and in defiance of courts of law, and a presidential war of choice in Iran, which has already cost taxpayers well in excess of $50 billion, resulted in the deaths of 18 soldiers, dozens and dozens of unreported injuries to members of our military, censorship at the Pentagon, unmitigated attacks on freedom of the press and freedom of speech, and unprecedented concentration of power in the executive that smashes the restraints on the presidency conceived by the framers of the Constitution.

Each of these grave injuries to American democracy has implications for the citizenry.  There is, for example, no apparent, face-saving exit for President Trump from the war in Iran, which he started, and which has spread throughout the Middle East, which means the rising costs of the war that you and I endure—at the gas pump and the grocery store—will continue. That is our immediate future, one that will span the months ahead as American workers make difficult choices between gasoline, food and medicine. This failure of checks and balances, conspicuous in Trump’s unconstitutional presidential warmaking and the absolute failure of Republicans in Congress to reclaim the institution’s constitutional control over matters of war and peace, reach into your living rooms, your kitchen, your ability to pay rent and meet mortgage payments. In short, the failure of checks and balances has a direct effect on the pocketbooks of Americans, which is precisely why we citizens should care deeply about the violation of this fundamental feature of the American Constitutionalism.

Since the doctrine of checks and balances is a defining feature of America, the question of if, when and how, our elected representatives adhere to it, represents a commentary on how American is living.  It is a question about the character of our nation.  Do we like what we see in the mirror?