CONSTITUTIONAL SLIDE OR TEETER-TOTTER?
INASMUCH AS THE DECLARATION OF INDEPENDENCE expressed 18th-century republican sentiment “to resist and overthrow tyranny,” the Constitution was our founders’ attempt to prevent tyranny from arising in any new form of government they proposed. The Constitution of the United States created structures and systems designed to establish a government of, by, and for the people, drawing its power to govern from the people. The three most important structures are the coequal branches of government: the legislative, the executive, and the judicial. The most important systems are the levers of government that determine how these structures interact, known as checks and balances. The fulcrum against which these levers are applied is the Constitution, making it the primary, though mostly invisible and esoteric, means of getting work done. Articles I, II, and III of the United States Constitution created the coequal legislative, executive, and judicial branches of the Federal Government, respectively.
As representatives elected to office by popular vote in the states, members of Congress are primarily tasked with writing and enacting laws using their enumerated powers, informed by the desires of their constituents and acting on their behalf. The President of the United States also receives popular votes in the states but is elected to office only by the Electoral College. He oversees the daily administration of the federal government through his appointed and approved cabinet members, civil servant department heads, and agency staff. The judicial branch is tasked with adjudicating challenges to legislatively enacted and constitutionally derived laws and, in doing so, guaranteeing equal protection for all citizens under the law. In addition to their primary purposes, each branch plays an important role in ensuring a delicate balance of power among them through a system of safeguards, restraints, and checks.
Congress can employ checks on both the executive and judicial branches. It has oversight responsibilities for the vast federal bureaucracy, the use of the Presidential veto override with a two-thirds supermajority, and the threat of impeachment of both the President and sitting justices. Congress has the power to confirm or deny Presidential nominations to the cabinet and federal courts, creating another check on both the executive and judicial branches. It also has the power to alter the structure of the federal courts through legislation. The Presidential veto is a check by the executive branch on the legislative branch. The President’s power to appoint federal judges as a means to influence the court’s composition and to grant pardons for federal crimes are Presidential checks on the judiciary. The courts, through judicial review, may interpret laws passed by Congress as unconstitutional, thereby limiting Congress’s power. They can also limit Presidential power by ruling actions of the executive branch unconstitutional. Two structural checks on populist tendencies exist apart from the three branches of government. One is the Electoral College, which directly elects the President regardless of the outcome of the popular vote. Another is the unequal apportionment, by population, of Senate power. Per capita, less populous states have greater representation than more populous ones.
The structures of government and the systems by which they are operated converge to create a delicate balance of power, equally distributed but not evenly apportioned among the branches. In other words, the powers are distributed among all three branches so that each checks the other two, but some powers are more efficacious and final in their operation than others. For example, a two-thirds supermajority vote in Congress that overrides a Presidential veto is a final, unchallenged action taken on a bill it wants enacted. Over the President’s objection and without his signature, the bill becomes law. The judicial branch has no constitutionally defined power to enforce any of its rulings. That task falls to the executive branch. Likewise, Congress may impeach and convict a President, but has no power to physically remove him from office if he chooses not to remove himself by honoring the will of the people. To understand the potential for disruption of this delicate balance of power, I will examine some hypothetical examples in which a constitutional crisis may emerge. Some may sound uncannily familiar in our contemporary political milieu.
If Congress were to abdicate its oversight of executive-branch departments, it would be unaware of, and consequently unlikely to control, Presidential or administrative overreach. If Congress lacks a veto-proof supermajority, the President can simply veto legislation that he or she opposes, regardless of how much popular support the bill may have. Conversely, if a simple majority of members of Congress wished to obstruct Presidential powers, they could constantly demand hearings and subpoena executive-branch administrators to testify before Congress. Or the Senate could refuse to confirm the President’s cabinet and judicial nominations. Congressional overreach may also occur when it works with one of the other two branches to either pass laws that are unconstitutional or alter the structure of the courts in its favor.
Congressional overreach and judicial review have become synonymous with the process of amending the Constitution, with far less accountability to the governed—we, the people. Congressional overreach can effectively amend our Constitution without the heavy lifting required to obtain a double supermajority under Article V. Thomas Jefferson advocated a convention every 19 years for the express purpose of amending the Constitution, declaring that no generation should bind the next. Many historians agree that without Article V, the Constitution would never have been ratified.[i]
Despite their brilliant yet often flawed thinking and the consequential compromises that they allowed, the Constitution contains ideals worth defending. Some of the Constitution's compromises institutionalized the very injustices the preamble claimed to oppose, setting the nation on a slow march toward civil war and raising a question more temporal than it was of potential. Until these injustices are redressed and the promised civil liberties are treated as more than mere words by our political leaders, its most cherished phrases remain aspirational footnotes, reminding us not only of what the nation promised but also of what it has yet to deliver.
Among all the equipment on the playground of constitutional reform, how would you describe what our Founders built? Was it a slide from the slippery slope of vaguely written interpretive clauses, or a teeter-totter from carefully balanced options resting on a solid yet constantly moving constitutional fulcrum? Or is there a third option: monkey bars that gave them the unimpeded power to caper about as they damn well pleased—without care, without consequences?
[i]. Jill Lepore, "We the People: A History of the U.S. Constitution, (Liveright, 2025), 108–109.
