Editing Separation of powers (section)

=== Checks and balances ===
{{redirect|Checks and balances|the conservative-libertarian organization|Checks and Balances (organization)}}

An idea often discussed together and even conflated with the separation of powers principle is the principle of "checks and balances".{{Sfn|Magill|2000|p=1167}} A government with checks and balances comprises more than one institution (often called a "branch" or "a power") exercising state power, and intends for each institution to have some influence over the other (interdependence). One institution may then "check" the other, or hinder it from using its power to pursue its ends – such as by declaring one of its actions a legal nullity or by questioning and removing one of its officers from their position. For instance, many parliaments consist of two houses; both of which are required to pass a bill before it becomes a law. A system of checks and balances also requires a balance of power between the institutions, so that the goals and actions of one are not completely determined by the other (independence); if both institutions were always in agreement by dint of one dominating the other, they would never challenge each other.

In a democratic state, where all government institutions are constituted by popular elections or through appointment by an elected body, disagreement between institutions may arise from conflicting institutional identities, fostered by differing internal power structures, decision-making processes or appointment procedures.{{Sfn|Magill|2000|pp=1170–72}} To continue the example of a bicameral parliament, members of the upper house of the United States Congress are each elected by the entire people of one federal state; whereas each member of its lower house is elected by their electoral district, a smaller and more localized constituency. A member representing a larger and more diverse base may require a broader coalition, composed of people with opposing interests, to win election, and is thus incentivized to moderate their stance; and vice versa.

Each branch's efforts to prevent either of the other branches from becoming supreme form part of an eternal conflict, which leaves the people free from government abuses. [[Immanuel Kant]] was an advocate of this, noting that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution to pit opposing factions against each other.<ref>{{Cite book |last=Kant |first=Immanuel |title=Political Writings |publisher=Cambridge University Press |year=1971 |isbn=9781107268364 |editor-last=Reiss |editor-first=Hans |location=Cambridge, England |pages=112–13 |chapter=Perpetual Peace |chapter-url=https://books.google.com/books?id=v7v3CwAAQBAJ&pg=PT79}}</ref>
Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches.<ref>{{Cite web |title=The Federalist No 48 |url=http://avalon.law.yale.edu/18th_century/fed48.asp |access-date=2018-03-28 |website=Avalon Project |publisher=Yale University}}</ref>  Under this influence it was implemented in 1787 in the [[Separation of powers under the United States Constitution|Constitution of the United States separation of powers]]. In [[Federalist No. 78]], [[Alexander Hamilton]], citing Montesquieu, redefined the judiciary as a separately distinct branch of government with the legislative and the executive branches.<ref name="Wood">{{cite book |last1=Wood |first1=Gordon S. |author-link1=Gordon S. Wood |editor1-last=Scalia |editor1-first=Antonin |editor-link=Antonin Scalia |chapter=Comment |title=A Matter of Interpretation: Federal Courts and the Law |date=2018 |pages=49–64 |url=https://books.google.com/books?id=l3CYDwAAQBAJ&pg=PA54 |access-date=12 December 2020|publisher=Princeton University Press |location=Princeton|doi=10.2307/j.ctvbj7jxv.6 }}</ref><ref>{{Cite conference |url=https://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/mchughj_2july04.html |title=The Strengths of the Weakest Arm |conference=Australian Bar Association Conference |location=Florence, Italy |date=2 July 2004 |access-date=22 August 2023 |archive-date=22 August 2023 |archive-url=https://web.archive.org/web/20230822215018/https://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/mchughj_2july04.html |url-status=dead }}</ref> Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative branches (with judges operating as appendages of the executive branch).<ref name="Wood" />

James Madison wrote about checks (and balances) in [[Federalist No. 51]]:<ref name="federalistNo51">{{cite web |url = http://avalon.law.yale.edu/18th_century/fed51.asp |website = The Avalon Project |title=Federalist No. 51 |last=James|first=Madison|publisher=Yale University|access-date=2018-03-24}}</ref>

{{Blockquote|
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. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. 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 and 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.
}}

[[Thomas Paine]] wrote about balances in ''[[Common Sense]]'':<ref>{{cite book |last1=Paine |first1=Thomas |title=Common Sense |chapter=Republican Government: On the Origin and Design of Government in General, With Concise Remarks on the English Constitution |date=1776 |url=https://press-pubs.uchicago.edu/founders/documents/v1ch4s4.html}}</ref>

{{Blockquote|

Some writers have explained the English Constitution thus: the king, say they, is one, the people another; the peers are a house in behalf of the king, the Commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous...how came the king by a power which the people are afraid to trust, and always obliged to check? Such a power could not be the gift of a wise people, neither can any power, which needs checking, be from God; yet the provision which the Constitution makes supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a ''Felo de se'': for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and though the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.}}

Importantly, Thomas Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. Denouncing the whole notion of checks and balances, at least as far as the English constitution was concerned, Paine articulated the case for republican virtue as follows:<ref>{{cite book |last1=Kuklick |first1=Bruce |title=Thomas Paine |date=2018 |publisher=Taylor & Francis}}</ref>

{{Blockquote|

[T]he plain truth is that it is wholly owing to the constitution of the people and not to the constitution of the government that the crown is not as oppressive in England as in Turkey.}}