Remember when “checks and balances” were considered a good thing.
Countervailing forces were viewed as a means to maintain a healthy equilibrium. Now, a time when right is equivocal and wrong has morphed into “inappropriate” or “unacceptable,” may be a good time to consider the utility of a concept designed to work like a see-saw. It won’t function properly without an even-weight distribution.
The wisdom of checks and balances stems from a fundamental understanding of human nature. In the exercise of free will, we are all struggling with choices between good and evil, or, if you prefer something less momentous, right and wrong. Those choices are magnified within institutions where the effects of wrong decisions are far more significant.
Understanding these inherent weaknesses, our “founding fathers” sought to limit power by setting off one branch of government against another.
These limitations were designed to force government officials to moderate excesses, compromise, and in so doing, presumably come up with better solutions. In theory it makes sense and it worked for a time but it overlooked outside pressures that would undermine the essential good will of decision-makers and promote partisanship.
The efficacy of checks and balances extends far beyond the internal operations of government. The separation of powers also explains the role of government in assuring social justice, the goal being a balanced government overseeing a balanced economy. Capitalism has been a productive economic engine. It, too, has informal checks and balances. The accumulation of wealth, greed being its worst form, competed with progress and the common good. For a time, government was able to restrain the former and promote the latter.
But, the forces of capitalism resisted and pushed back with money to prevent restrictions. Government proved vulnerable. Enjoying the perks of office, public officials are motivated by political survival. Increasing amounts of money are necessary to sustain their power. Capitalism expanded its influence over the very institution responsible for holding it accountable. When checks fail, the balance of power is broken. The equilibrium between incentives and social responsibility is lost and partisanship overwhelms the common good. It’s where we find ourselves today.
That same combination of forces works within all of us. The options – right or wrong and good or bad – are not always clear, particularly given our capacity to rationalize even a wrong decision. “If it’s what I want, it must be in my interest, therefore it’s good,” is an easy out.
What are the checks on our own balance, assuming we wish to be balanced which, to me, means thoughtful, understanding, humble, compassionate, honest, and truthful?
In my youth, it was conscience, believed to be a function of the soul, two words one does not hear often today when even the most deplorable acts are softly condemned as “inappropriate.” Whatever became of sin? Conscience was considered a spiritual or moral impulse toward virtue and away from evil. It was the check (restraint) reinforcing balance (good judgment).
While law is necessary for an ordered society, it’s an external restraint normally designed to prevent bad behavior, a disincentive enforced with penalties. Alone, it’s a weak instrument to promote social justice and public welfare. It needs to be supplemented with internal constraints based on an awareness of what is right and just and a commitment to live accordingly.
Our checks and balances are no longer working well at any level. The creative tension between virtue and corruption, right and wrong, common good and personal desires, is bending toward perceived self-interest. It’s hard to be optimistic under present circumstances. One can only hope we regain our balance before it’s too late and return to a time when “character” was a good thing and “inappropriate” behavior was sneezing in your soup or forgetting an anniversary.
James W. Dolan is a retired Dorchester District Court judge who now practices law.