5000 Year Leap (23 page)

   As it turned out, the American Founding Fathers achieved a system of checks and balances far more complex than those envisioned by Montesquieu. These included the following provisions:

   1. The House of Representatives serves as a check on the Senate since no statute can become law without the approval of the House.

   2. At the same time the Senate (representing the legislatures of the states before the 17th Amendment) serves as a check on the House of Representatives since no statute can become law without its approval.

   3. A President can restrain both the House and the Senate by using his veto to send back any bill not meeting with his approval.

   4. The Congress has, on the other hand, a check on the President by being able to pass a bill over the President's veto with a two-thirds majority of each house.

   5. The legislature also has a further check on the President through its power of discrimination in appropriating funds for the operation of the executive branch.

   6. The President must have the approval of the Senate in filling important offices of the executive branch.

   7. The President must also have the approval of the Senate before any treaties with foreign nations can go into effect.

   8. The Congress has the authority to conduct investigations of the executive branch to determine whether or not funds are being properly expended and the laws enforced.

   9. The President has a certain amount of political influence on the legislature by letting it be known that he will not support the reelection of those who oppose his program.

   10. The executive branch also has a further check on the Congress by using its discretionary powers in establishing military bases, building dams, improving navigable rivers, and building interstate highways so as to favor those areas from which the President feels he is getting support by their representatives.

   11. The judiciary has a check on the legislature through its authority to review all laws and determine their constitutionality.

   12. The Congress, on the other hand, has a restraining power over the judiciary by having the constitutional authority to restrict the extent of its jurisdiction.

   13. The Congress also has the power to impeach any of the judges who are guilty of treason, high crimes, or misdemeanors.

   14. The President also has a check on the judiciary by having the power to nominate new judges subject to the approval of the Senate.

   15. The Congress has further restraining power over the judiciary by having the control of appropriations for the operation of the federal court system.

   16. The Congress is able to initiate amendments to the Constitution which, if approved by three-fourths of the states, could seriously affect the operation of both the executive and judicial branches.

   17. The Congress, by joint resolution, can terminate certain powers granted to the President (such as war powers) without his consent.

   18. The people have a check on their Congressmen every two years; on their President every four years; and on their Senators every six years.

   President Washington felt that the separation of powers with its accompanying checks and balances was the genius of the American system of government. The task was to maintain it. In his Farewell Address he stated:

   "It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.

   "The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position.

   "The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
211

   During nearly two centuries that the Constitution has been in operation, it has carried the nation through a series of traumatic crises. Not the least of these have been those occasions when some branch of government became arrogantly officious in the administration of its assigned task or flagrantly violated the restrictions which the Constitution placed upon it. As President Washington indicated, there is a tendency for some of this to occur continually, as is the case in our own day, but when it reaches a point of genuine crisis there is built-in Constitutional machinery to take care of it.

   By way of contrast, we have scores of nations which claim to have copied the United States Constitution, but which failed to incorporate adequate checks and balances. In those countries, the only remedy, when elected presidents have suspended the constitution and used the army to stay in power, has been to resort to machine guns and bombs to oust the usurper. This occurs time after time. What the Founders wished to achieve in the Constitution of 1787 was machinery for the peaceful means of self-repair when the system went out of balance.

   One of the most dramatic illustrations of the peaceful transfer of power in a time of crisis was in connection with the Watergate scandal. A President was found to have used his high office for purposes which were beyond the scope of his authority and outside the ramifications of legal conduct. Under threat of impeachment, he resigned. At the time, he was Commander-in-Chief of the Armed Services of the United States. He made no attempt to use these military forces to keep himself in power. In fact, under the American Constitution, it would have been useless for him to have attempted it. The transfer of power was made quietly and peacefully once the issue came to a point of decision.

   Some of us have had to travel or live in nations during a time of turmoil and revolution. Even one such experience will usually convince the most skeptical activist that there is nothing to be gained and a great deal to be lost by resorting to violence to bring about political change. Once a constitution has been established and the machinery developed for remedy or repair by peaceful means, this is the most intelligent and satisfactory route to pursue. It requires more patience, but given time, the results are more certain.

   To solve problems by peaceful means was the primary purpose of the United States Constitution.

   The one weakness of the Anglo-Saxon common law was that it was unwritten. Since its principles were known among the whole people, they seemed indifferent to the necessity of writing them down. As Dr. Colin Rhys Lovell of the University of Southern California states:

   "The law applied by any of these Anglo-Saxon assemblies was customary. Until the Anglo-Saxon conversion to Christianity it was unwritten and like all customary law was considered immutable."
212

   However, the Norman Conquest taught the Anglo Saxons in England a bitter lesson. Many of their most treasured rights disappeared in a flood of blood and vindictive oppression. In fact, these rights were regained very slowly over a period of centuries and gradually they were written down. In 1215 A.D., during a national crisis, the sword was virtually put to the throat of King John in order to compel him to sign the Magna Charta, setting forth the traditional rights of freemen as well as the feudal barons who had been serving under King John.

   During that same century the "Model Parliament" came into being, which compelled the King to acknowledge the principle of no taxation without representation. Charles I was later pressured into signing the people's Petition of Rights in 1628, and the English Bill of Rights was signed by William and Mary in 1689.

   Through the centuries, the British have tried to manage their political affairs with no written constitution and have merely relied upon these fragmentary statutes as a constitutional reference source. These proved helpful to the American Founders, but they felt that the structure of government should be codified in a more permanent, comprehensive form. It will be appreciated, therefore, that the tradition of written constitutions in modern times is not of English origin but is entirely American, both in principle and practice.

   The first written charter in America was in 1620, when the Mayflower Compact came into being. Later the charter concept evolved into a more comprehensive type of constitution when Thomas Hooker and his associates adopted the Fundamental Orders of Connecticut in 1639. It is interesting that the Connecticut charter makes no reference to the Crown or the British Government as the source of its authority. It is a compact of "We, the people." As historian John Fiske writes:

   "On the 14th of January, 1639, all the freemen of the three towns assembled at Hartford and adopted a written constitution in which the hand of the great preacher [the Reverend Thomas Hooker] is clearly discernible. It is worthy of note that this document contains none of the conventional references to a "dread sovereign" or a "gracious King," nor the slightest allusion to the British or any other government outside of Connecticut itself, nor does it prescribe any condition of church-membership for the right of suffrage. It was the first written constitution known to [modern] history, that created a government, and it marked the beginnings of American democracy, of which Thomas Hooker deserves more than any other man to be called the father.

   "The government of the United States today is in lineal descent more nearly related to that of Connecticut than to that of any of the other thirteen colonies.... This little federal republic ... silently grew till it became the strongest political structure on the continent, as was illustrated in the remarkable military energy and the unshaken financial credit of Connecticut during the Revolutionary War."
213

   Montesquieu pointed out that when it comes to legislating (which includes the setting up of constitutions), the writing of the statute or charter is "oftentimes better regulated by many than by a single person."
214
In harmony with this same sentiment, the American Founding Fathers considered it wise to "legislate" their constitution by filtering it through the wisdom and experiences of many delegates assembled in a convention rather than leaving it to the genius of some individual. James Madison commented on this:

   "It is not a little remarkable that in every case reported by ancient history in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.

   "Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such reform, which, he alleged, had been prepared by Servius Tullius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus."
215

   It is always difficult to operate through a committee, a group, or a convention as the Founding Fathers did. Nevertheless, the history of the convention demonstrates that the final product was far stronger than any individual could have written it. Time has also proven the tremendous advantage of having a completely written document for reference purposes rather than relying upon tradition and a few scattered statutes as the fundamental law of the land.