February 1, 1788
James Madison, under the pseudonym Publius, wrote about the system of checks and balances housed in the draft Constitution—and how fragile they are. Those checks and balances are “a mere demarkation on parchment of the constitutional limits of the several departments”—those departments being the legislative, executive, and judicial. And the demarkation of those limits was “not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
There needed to be something more than a piece of parchment to guard against one department siphoning power from the other departments. A power-hungry Congress could not be left to police itself. As Madison wrote: “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
In fact, the legislative department was one with powers “being at once more extensive and less susceptible of precise limits” and can mask its encroachments on the other departments with “complicated and indirect measures . . . .” What makes this even more possible for the legislative department is that it “alone has access to the pockets of the people” with “a prevailing influence over the pecuniary rewards of those who fill the other departments . . . .”
Congress has its power to legislate but also its members’ proclivity for cloaking the aims, means, and effects of legislation. Through legalese or simply the size and scale of the law, the people may not know what Congress is up to. And it is the people that may accept or reject the encroachment of one branch upon another—despite the Constitution. If the people approve it, the encroachment stands and the contours of the three branches adjust. But if the people do not know of or comprehend this happening—or are distracted by other matters or simply lose focus of the importance of it—then the encroachment goes unchecked. And if enough encroachments occur, the balance of power may be upended and democracy with it.