Introduction

In some of the most famous passages of The Federalist Papers, James Madison wrote the following:

Madison here encapsulates one of the fundamental challenges of designing a system of separated powers controlled by checks and balances based on the sharing of those powers: how to prevent checking by the sharer of a power so encroaching on the exercise of that power by its primary repository as effectively to transfer (some of) the power from the repository to the checker. The answer, built into the constitutional design by the Founders, was to provide repositories of power with weapons of ‘self-defence’ against ‘self-aggrandisement’ by those with whom they shared the power. Perhaps the clearest illustration of this technique is provided by the Presidential veto, which gives the President a shield against the power of Congress to initiate legislation without the President's involvement. In turn, Congress can override the veto by a two-thirds majority vote, which may be understood as some sort of guarantee that Congress is not merely seeking to aggrandise a bare majority (one ‘faction’) at the expense of the President (another faction?). Executive privilege, discussed in Chapter 10, provides another example of a Presidential weapon of self-defence in the ongoing contest between the legislature and the executive over access to executive-held information.

The Founders believed that in a ‘republic’ the most dangerous institution in terms of its capacity for self-aggrandisement is the legislature, and that the ‘least dangerous branch’ is the judiciary. Certainly, the Constitution gives Congress much more formal power than it gives either the President or the judiciary.