Challenging the Crown: Legislative Independence and the Origins of the Free Elections Clause
The American system of checks and balances is under considerable stress. The President’s exercise of unilateral and unchecked powers, once limited to foreign affairs and war, has increasingly been extended to domestic matters. At the same time, Congress’s authority to check the President’s unilateral exercise of power, long emasculated in foreign affairs and war, now is threatened in domestic affairs by its own declining will to check. Unrestrained executive power has grown as Congress recedes into the background.
Congress’s declining will to check presidential unilateralism bottomed out during the Trump presidency, when Congress could not muster the will to check clear abuses of executive authority. The President’s co-partisans in Congress refused to discharge their constitutional role because they needed the President’s support for their own reelections. Since the Constitution requires congressional super-majorities to override inevitable presidential vetoes of legislation blocking unilateral presidential authority, the unwillingness of the President’s co-partisans to reign him in rendered Congress a dependent subordinate to the President.
To fully understand the checks and balance framework and how the Constitution protects legislative independence, it is necessary to move beyond legal scholarship’s usual starting points. Focusing on Montesquieu and Madison, the Constitutional Convention and ratification debates in 1787, and the Federalist Papers contributes to the misleading impression that the American checks and balances framework began with Montesquieu and ended with the U.S. Constitution. The U.S. Constitution’s checks and balance framework, I argue, originated in the overlooked struggle between the Crown and Parliament in seventeenth-century England. To comprehend a key pillar of the checks and balance framework, we need to account for those struggles.