Checks and Balances

MadisonThe Federalist Papers also provide the first specific mention we have in political literature of the idea of checks and balances as a way of restricting governmental power and preventing its abuse. The words are used mainly in reference to the bicameral legislature, which both Hamilton and Madison regarded as the most powerful branch of government. As originally conceived, the presumably impetuous, popularly elected House of Representatives would be checked and balanced by a more conservative Senate chosen by state legislatures. (The 17th Amendment, added in 1913, changed this provision to mandate the popular election of senators.) On one occasion, however, Madison argued more generally that "office should check office," and Hamilton observed that "A democratic assembly is to be checked by a democratic senate and both these by a democratic chief magistrate."

In his most brilliant essay (Number 78), Hamilton defended the Supreme Court's right to rule upon the constitutionality of laws passed by national or state legislatures. This historically crucial power of "judicial review," he argued, was an appropriate check on the legislature, where it was most likely that "the pestilential breath of faction may poison the fountains of justice." Hamilton explicitly rejected the British system of allowing the Parliament to override by majority vote any court decision it finds displeasing. Rather, "the courts of justice are to be considered the bulwarks of a limited Constitution against legislative encroachments." Only the painstaking and difficult process of amending the Constitution, or the gradual transformation of its members to another viewpoint, could reverse the Supreme Court's interpretation of that document.