The inauguration of Donald Trump as president has imbued many discussions about civics and politics with renewed vim and vigor.
Among them are fundamental questions about the responsibilities between a government and its citizens, the extent of civil liberties protection and even the system of checks and balances.
In recent weeks, the Executive Order regarding immigration has brought into focus the role of the judicial branch as a check on the executive branch. Within days of signing the Executive Order, Trump’s policy was challenged in multiple courts across the country.
Although it is uncertain whether any of these cases will make their way to the Supreme Court, it is in fact the wider system of courts — including federal and district courts — that function to check and balance executive power.
The phrase “checks and balances” may seem like a throwback to high school civics class, but the function of one branch of the government checking and balancing another is a vital and everyday part of how our political institutions operate.
In the case of the courts, their role is to quite literally check the legality and constitutionality of particular policies. And if a policy is held to be out of bounds, then the courts are charged with using their power to balance against the executive branch, thereby curbing the extent of the presidential power.
James Madison, in the Federalist Papers No. 51, writes: “If men were angels, no government would be necessary.” With regard to checks and balances, his words could be adapted in the following way: if presidents were angels, no court would be necessary.
But the mere existence of courts isn’t enough; they must have the power to effectively check and balance.
Here — referring to branches of government as departments — Madison has the following advice: “[T]he 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 [….] Ambition must be made to counteract ambition.”
Interestingly, Madison identifies both constitutional means and personal motives as necessary for the court to keep the other branches in line. Madison wasn’t referring to personal animosity on the part of the judges or even to current debates about so-called activist judges.
Instead, he is emphasizing how important it is to have judges (and, by extension, lawyers) that have a personal commitment to upholding the role of the courts. And in so doing, Madison rests the efficacy of checks and balances not only on the institutional design of the governmental system, but on the civic spirit that the individual office holders bring to their work.
Extending Madison’s point a bit further, it becomes clear that an efficacious court system — one that can in fact check and balance the executive — also relies on the commitments of the society at large.
The last few weeks of political news has caused a resurgence in interest about these most fundamental aspects of our government precisely because it has awoken this civic spirit.