The System of Checks and Balances and the Promise of an “Armed Truce”

As anticipated, I will here maintain that the system of checks and balances is not prepared to favour collective debate. It does not prevent it and, occasionally, it can coexist with it, but it was designed to serve a different, and rather opposite purpose.

In my view, it is this weakness of our institutional system what accounts for the enormous attention that a (rather minor) institutional reform like the notwithstand­ing clause obtained from the legal academy. In fact, the adoption of the Charter in Canada did not represent a significant progress towards the goal of democratic deliberation, as many authors may assume.^[195] If it gained so much attention this was - I submit- because it represented an interesting, unexpected effort aimed at changing the institutional system in the direction of a more deliberative scheme. In other words, I take the academic success of the clause as a first suggestion of the validity of one of my claims, namely that the system of checks and balances has not been even slightly helpful in the promotion of a collective conversation. My asser­tion, however, is stronger than that. What I am assuming here is that even though the system of checks and balances does not prevent the development of deliberative practices, it neither fosters them, nor fits well with them: the system was aimed to a different goal, namely to prevent social confrontation.

In order to support my claims about the “purpose” and “logic” of the system of checks and balances, I will first resort to legal history and pay attention to the public reasons offered by the ideologues of the system.

6.5.1 Containing Social Warfare

Not surprisingly, I will begin this historical investigation with a reference to the Federalist Papers, and particularly to the most cited, significant and influential text ever written on the topic, this is to say Federalist paper No. 51. The analysis of this line of argument seems particularly important given the decisive influence that it had for the creation and development of the system of checks and balances, first in the United States, and then in other regions of the world, beginning from Latin America.

In Federalist paper No. 51, James Madison explained and justified the creation of this system of mutual balances. The core of the paper appears in this crucial para­graph, where Madison stated:

The great security against a gradual concentration of the several powers in the same depart­ment, consists in giving to those who administer each department the necessary constitu­tional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

The passage is extraordinarily rich, and a proper understanding of it would take an entire seminar, so I will limit myself to highlight a few notes about it. First of all, I will claim that, concerning the basic organization of the system of checks and bal­ances, Madison’s views were apparent. Madison did not envision a dialogic rela­tionship between the different branches, but rather a scenario of “perpetual war”. He assumed that “those who administer[ed] each department” would systematically attempt to violate the limits of their own powers and invade the areas controlled by the other branches. In other words, the ideas of cooperation or mutual collaboration were basically absent from his understanding of the dynamic between the branches. This explains why members of each branch were mainly prepared to “resist encroachments of the others.”

The main strategy in order to avoid these mutual encroachments was - and this is probably the main line of Federalist paper No. 51 - to give “to those who admin­ister each department the necessary constitutional means and personal motives” required for that purpose. For Madison, the representatives’ “personal motives” were taken as given: he was mainly thinking about self-interest (and passions). As he put it: “ambition must be made to counteract ambition”.^[196] In passing, it is inter­esting to note that this view of human motivations implied the dismissal of other alternative approaches to the topic, and particularly a dismissal of those (then enor­mously relevant) republican views that assumed that civic virtue played or could play a central role in politics (Skinner 1983, 1984, 1990, 1998).

Madison assumed that the main motivation of “those who administer each department” was (and was going to be) their uninhibited ambition. So, what to do in the face of this sad fact? His response was to give members of each department “the necessary constitutional means...to resist encroachments of the others.” The “nec­essary constitutional means” were those that still distinguish the system of checks and balances, namely the veto power of the president; the controlling powers of the judiciary; the power of insistence of the legislature; the right of impeachment; etc.

Clearly, these “necessary means” were not dialogical instruments. They were mechanisms that, like arms or guns, were supposed to facilitate the achievement of an “armed truce” between the branches. In other words, it was then assumed that, with these arms at their disposals, members of each department would be able to “resist the encroachment of the others.” In other terms - and this was the hope, and at the same time the promise of the system- fearing retaliation, members of the dif­ferent branches would not be tempted to interfere with the affairs of the other branches. This promise was also a sad recognition of the limitations of the system, which in no way was perceived as favourable to collective dialogue.

The Framers’ defense of a system of checks and balances implied the dismissal of an alternative system, which many of their republican and radical adversaries proposed, namely a system of “strict separation” of powers (Vile 1967).^[197] According to this alternative scheme, none of the branches enjoyed the right to interfere with the affairs of the others - not even through defensive mechanisms. Radicals inclined toward a system of strict separation of powers because this was an alternative that not only promised to eliminate any confusion regarding which power would be responsible for what tasks, but also one that would preserve the inherent superiority of congress vis-a-vis the other branches of power.

In sum, the Framers promoted an institutional system that was aimed to “econo­mize in virtue” (that, seemingly, their rivals did not want to “economize”), and consequently tried to use the representatives’ self-interest (“ambition”) in the ben­efit of all (Ackerman 1991, 198). Their idea was that the mechanisms of checks and balances could ensure an “armed truce” between the then existing social, economic and political interests. Within this picture, the alternative of having a mobilized citi­zenry and/or an active Congress appeared as fundamentally unattractive.

6.5.2 Thwarting the Ideal of “Government by the People”

In the precedent section I tried to demonstrate that the system of checks and bal­ances responded to the need to contain social warfare, rather than promote collec­tive deliberation. Now, let me say something concerning its deficit in terms of inclusion and popular participation, by making three points, related to the Framers’ ideas about factions ; the representative system ; and the establishment of a system of internal rather than external controls.

The concept of factions, which is unquestionably the most important political concept in Federalist Papers, represents a good start in order to specify my views on the subject.^[198] It seems clear that the entire new structure of government was directed to contain the risks that factions posed to any government. We can put this even stronger: the entire Constitution was primarily justified as a way to contain the evils of factions. Now, a first interesting thing to note is that, in Federalist Paper N. 10 Madison precisely defined factions as a “number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” However, a few lines below he made it clear that “if a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” As a consequence, the only factions that really mattered were majority factions, which allows us to say that the entire Constitution was, in the end, dedicated to restrain the actions of majority groups, given their oppressive tenden­cies.

In the same paper, Madison made reference to the “violence of faction” and the “instability, injustice, and confusion” that factions “introduced into the public coun­cils,” which represented “the mortal diseases under which popular governments have everywhere perished.” What Madison had in mind was the so-called “paper money crisis” that affected the country during this post-independence (and pre­constitutional) period. This “crisis” had become more threatening and dangerous as a consequence of its legal manifestations than as a result of the armed confronta­tions that it provoked. In the end, the armed confrontations (symbolized by the famous “Shays rebellion”) were generally perceived as illegal actions, and conse­quently repressed by the troops of the Confederation (Brown 1970, 1983; Feer 1988; Szatmary 1987; Wood 1996). The real problem seemed to be another, which emerged when the same demands that a few had advanced through the use of armed violence (and that were then combated, as illegal actions), began to gain terrain through the use of the law. This is to say, the main threat to a stable and well-ordered government seemed to come from “outside”. The suggested solution was then two­fold: restrictions to external pressures, and a system of internal controls.

In other words, a socially explosive situation, which included armed rebellions, unchecked legislatures and the “paper money crisis,” explains why most of the Framers came to favor a system of endogenous, rather than exogenous or popular controls.

It was that explosive social situation what moved Madison, in Federalist No. 10, to resist direct popular participation in politics and favour, instead, a representative system where representatives of the people would “refine and enlarge the public views by passing them through the medium of a chosen body of citizens”.^[200] So, for Madison, as for most of the “Founding Fathers,” the representative system was not seen as a “second best” or a “necessary evil” (as many of their anti-federalist opponents envisioned it). Representation was, for them, a first and desired option. And this was so because they assumed that the people themselves were still not well-prepared to engage in politics directly. For Madison, the representatives’ deci­sions tended to “better serve justice and the public good than would the views of the people themselves if convened for that purpose”. James Fishkin has characterized this Madisonian approach (which he directly relates to the one develop by John Stuart Mill a century later -in his Considerations on Representative Government), as one of elite deliberation (Fishkin 2011, 243, 246). As we also try to do here, Fishkin distinguishes that elitist system of democracy from deliberative democracy.^[201]

The Framers’ elitist view derived from some of the assumptions explored in preceding sections, and particularly from the Framers’ fear of majoritarian democ­racy. It was also as a result of those assumptions that they limited popular political participation mainly to periodical suffrage. Of course, the importance of periodical suffrage cannot be denied. For example, in the same Federalist No.51, Madison highlighted the relevance of regular elections. He stated: “A dependence on the people is, no doubt, the primary control on the government”. Madison’s claim was truthful, but only in part.

It is true that periodical elections represent an external control that plays a crucial role in our system of government. However, it is also true that periodical elections constitute only one among the many numerous mechanisms of popular character that could have been then adopted. The fact is that the Framers rejected or choose not to consider numerous other mechanisms of external control, which were very common at their time. These mechanisms included mandatory instructions; the right to recall; mandatory rotation; annual elections; frequent town meetings; etc. Devices of the kind had been advanced by British radicals in Great Britain, during the mid-1700s - from Richard Price, Joseph Priestly and the group of “Radical Dissenters,” to James Burgh and John Cartwright- and also in the United States, by the political opposition (the so-called anti-federalists), in the years that preceded the enactment of the national Constitutional (Cone 1968; Hay 1979; Kenyon 1985; Paine 1989; Storing 1981a, b; Wood 1969, 1992, 2002).

Now, the fact that none of these mechanisms found a place in the U.S. Constitution implies at least two things. On the one hand - and we have discussed about this already- the system of endogenous controls became the central feature of the new structure of government. On the other hand, popular suffrage suddenly became the only relevant institutional bridge between the representatives and the represented. In other words, periodical suffrage assumed an extraordinary responsibility: elec­tions became in charge of periodically “revealing” the will of the people, without much additional institutional help. Consequently, the virtual absence of alternative devices make it extremely difficult for the people to control their representatives and make their voice audible, thus undermining the republican character of govern- ment.^[202] Most early critics of the representative system recognized this risk.

From the perspective of deliberative democracy, this understanding of politics results particularly unattractive. And this is so because the appeal of the new dia­logic system of constitutionalism entirely depends - or so I shall argue- on its capac­ity to overcome the democratic deficit that has been affecting our representative system in all these years. Only a wide and inclusive dialogue may become a mean­ingful dialogue.

6.5.3 Democracy

Having reached this point, I think it is very important to pay attention to the peculiar view of democracy presupposed in the system of checks and balances. The concep­tion of democracy that prevailed among the Framers has already been the object of profound academic analysis (Dahl 1956). We have already some indications about what that conception of democracy looked like: we know about the Framers’ dis­trust of the legislatures or their fear of unchecked majorities. For the Federalists it was clear that “in all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter of reason” (Federalist paper 55).

This fearful approach to politics favored the development of a negative under­standing of democracy - let us call it pluralist- where the main purpose of democ­racy is not to foster deliberation or promote collective agreements, but rather avoid mutual oppressions (Dahl 1956). This goal, together with the assumption that fac­tions had a natural tendency to oppress each other, explains the Framers’ overriding concern with the creation of a system of controls and mutual balances. The proposal to balance “ambition with ambition” so as to “control de abuses of government” expresses well the Federalists’ assumptions, their fears and their hope. Alexander Hamilton made this point very clear. He stated:

Give all the power to the many, they will oppress the few. Give all the power to the few, they will oppress the many. Both therefore ought to have power, that each may defend itself agst. the other (Hamilton in Farrand 1937, vol. 1, 288).

James Madison made an identical point. For him, “The landholders ought to have a share in the government, to support the...invaluable interests (of property) and to balance and check the other (group)” (Madison in Farrand 1937, vol. 1, 431).

Now, the object of this view of democracy - avoiding mutual oppressions- was certainly worth of praise, particularly at a time when social divisions implied dire confrontations and even armed clashes between opposing interests.^[203] In that context, a negative conception of democracy may appear as a reasonable choice: few things seem more important than preventing extreme social conflict, avoiding the repres­sion of unpopular minorities, etc. However, it seems also clear that this conception of democracy was based on controversial normative grounds - grounds that sub­stantially differ from those that characterize the deliberative approach, and also from our presently shared understandings of democracy.^[204] For the moment, it should be enough to say that the institutional system tried to ensure that “the many” and “the few” enjoyed an equivalent institutional power, which seems an odd solution in democratic terms. This sole proposal suggests an idea of democracy that has very little connections with our present approaches to the democratic ideal. Of course, it seems perfectly reasonable to ensure protection to unpopular minorities, but not - I would add- at the cost of so severely undermining the basic majoritarian component of democracy.^[205]

6.5.4 Latin America

Given that I take most of my dialogic examples from Latin America, let me add a few lines exploring the existing continuities between Anglo-American legal history and what happened in Latin America during its Founding years.^[206] I will limit myself to make two quick points: first, I will claim that there is a clear continuation between the U.S. constitutional history and Latin America’s constitutional history; and sec­ond, I will show that Latin Americans tended to carry the U.S. institutional model to its extreme, particularly as a result of the influence of conservative/religious groups. These two developments, I should add, make inter-branch and popular dia­logue still more difficult to achieve.

Concerning the continuities between the U.S. and Latin America, I would add that, given the importance that liberalism acquired during the Framing Period in Latin America, most countries in the region modeled their Constitutions under the influence of the U.S. Constitution. They organized a system of checks and balances that followed the U.S. model and - accordingly- established a presidentialist sys­tem. In addition, they also included a Bill of Rights in their Constitutions, according to the U.S. example. However, I should add that this particular aspect was substan­tively modified during the twentieth century (and after the 1917 Mexican Revolution), when most countries began to include social, economic and cultural rights within their Constitutions.

The second point that I want to make is that, given the significant and growing influence of conservative and religious forces in Latin America (particularly during the first half of the nineteenth century), most Constitutions began to at least partially depart from the U.S. example. In particular, the changes that were then incorporated into the new Constitutions implied two things. First, the separation of Church and the State that some Latin countries recognized in their Bill of Rights resulted in one way or another undermined. In cases like the one of Argentina, the Constitution included, at the same time, both a commitment to religious tolerance and a provi­sion ensuring a special status to the Catholic religion. The other change that was introduced in most Constitutions concerned the organization of the system of checks and balances. A majority of Latin American countries modified the U.S. presiden- tialist system and carried it to its extreme. Consequently, they created hyper- presidentialist systems of government, within the context of already highly centralized countries. This initiative, I should add, put the entire system of equilib­riums (which requires the different branches to be relatively equal in power) at risk.^[207] Moreover, and more significantly for our purposes, hyper-presidentialist sys­tems tend to be particularly harmful as far as public discussions are concerned. As Carlos Nino has suggested, powerful presidents have very little incentives for engaging in dialogue with the other branches of power (why to do it, when they can simply impose their decisions upon the rest?); and tend to use the strong powers at their disposal so as to foster public acclamation, rather than public debate about their proposals (Nino 1996).

6.5.5 Summing Up

What are the inferences we can derive from of all these initial reflections concerning the system of checks and balances? And what is the connection between those them and our topic of dialogic constitutionalism? The partial conclusion is the following: The system of checks and balances does not represent an appropriate institutional basis for the promotion of deliberative democracy.^[208] It was a remedial, institutional response to a situation of extreme social, political and economic conflict.^[209] In that conflictive context, its immediate and fundamental purpose was to contain and channel the existing social crisis, which had begun to manifest itself through the institutional system (i.e., through paper money legislation enacted by seemingly unchecked legislatures). The connection of this partial conclusion with our present topic seems then apparent: taking into account the present characteristics of our institutional system, dialogic constitutionalism faces and (most probably) will con­tinue to face grave problems for becoming a stable and non-discretionary institu­tional solution.^[210] And this is so because the basic structure of our institutional system is not well prepared to favour inter-branch dialogue, and even less to main­tain institutional dialogue over time. It can accept it occasionally, but it is clearly not hospitable to it.^[211]

The problem we are dealing with seems to be present even in the context of Canada, where the Charter introduced formal mechanisms favouring at least some form of constitutional dialogue. Reviewing the history of dialogic mechanisms in Canada, Kent Roach (who is one of the main academic authorities in the override clause) recognizes these worries. He states: “concerns have been raised that on some issues the Court has had or shaped the last word. Fears have been expressed that whatever its potential, dialogic judicial review can degenerate into judicial monologue and supremacy” (Roach 2004, 75-6; see also Cameron 2001). Clearly, I do not want and I am not able to evaluate the actual working of the Canadian model. At this point, I just want to say that one can perfectly understand existing concerns about the real scope and implications of the Charter reform and judicial review.

The difficulties I mention in relation to the Canadian context are obviously more significant in those countries that have decided to keep their old structure of checks and balances untouched. In Latin America, serious problems emerge as a conse­quence of the privileged position that judges still enjoy; or as a result of the hyper­centralized and hyper-presidentialist character of the dominant institutional organization. For instance, a recent study by Rodriguez-Garavito (2011) compares the most important dialogic decisions of the noted Colombian Constitutional Court, in cases of structural litigation. These decisions include the famous Sentencia T-025, about the rights of displaced people; Sentencia T-760, about the right to health^[212]; and Sentencia T-153, about the rights of prisoners.^[213] In one of these cases, namely Sentencia T-025, the Court designed a spectacular monitoring process. In Rodriguez-Garavito’s words: “Over the course of 7 years, it has engendered 21 follow-up public hearings involving a wide array of governmental and nongovern­mental actors, as well as nearly 100 follow-up decisions whereby the CCC has fine­tuned its orders in light of progress reports” (Rodriguez-Garavito 2011, 1694). The situation, however, has been dramatically different in the other two cases, and par­ticularly in Sentencia T-153, which did not include any court-sponsored monitoring­mechanisms. The tentative, initial conclusions that may be drawn from this comparison are diverse, but here I want to just insist in one point, related to the informal, discretionary character of our dialogical practices. In he end, and to repeat, the point is that the traditional system of checks and balances (everywhere, and particularly in countries with highly concentrated systems of governments) is not hospitable to dialogic mechanisms: it may accept them occasionally, but only when public authorities want to appeal to them, and insofar they are willing to accept their implications.^[214]

6.6