Every high school government class begins with a lesson on “checks and balances.” We usually think of checks and balances as the three branches of government—executive, legislative and judicial—but there are other mechanisms, notably federalism and the Bill of Rights, that were intended to serve the same purpose.
Checks and balances grew out of the central preoccupation of those charged with creating a new government: limiting the exercise of government power. That concern was so overwhelming that it had undermined the first attempt to craft a federal system; the Articles of Confederation had so attenuated central power that the resulting government was too weak to be effective.
As James Madison memorably explained, dividing government into branches and levels having different responsibilities would set “faction against faction” and force deliberation and compromise. In the American system, the first question to be asked when the state proposes to act is: who decides? Is this a question that government has been empowered to get involved with in the first place? If so, which part of government?
With all the posturing and pontificating about “activist” courts, what we sometimes forget is that the judges are the ones who are supposed to say “no” when other parts of government overstep their authority—when the constitutional checks and balances are threatened. And efforts to extend government power beyond what our system permits are everywhere—and growing.
Here in Indiana, in the Executive Branch, the Governor has decided that he knows better than local school corporations what sorts of buildings they should build with their own local tax dollars. In the legislature, Representative Pat Miller has introduced truly surreal legislation that would make criminals of women engaging in “unauthorized reproduction.” Women who want to become pregnant using artificial insemination, in vitro fertilization, or similar reproductive techniques would have to apply to the state for a permit, and only married women would be granted such a permit. (I am not making this up! What’s next, forced abortions for unmarried pregnant women?)
At the federal level, we have a Congress that passed the Patriot Act without hearings (or even, in several cases, reading it), a Congress unwilling to check executive authority by insisting on its own prerogatives to declare war, or to meaningfully examine the qualifications of Presidential appointments. Our Imperial Presidency operates in virtual secrecy, crafting energy policy with favored lobbyists, detaining people without due process, and ignoring state laws with which it disagrees.
Ultimately, this is the context within which we must analyze the President’s Supreme Court choices. While public debate has centered on nominees’ positions on abortion, or the politics of this or that nomination, it is much more likely that the real reason for choosing John Roberts and Harriet Miers had nothing to do with Roe v. Wade, or Presidential weakness, or gender politics. Whatever other beliefs either may hold, these are first and foremost individuals who favor reducing the constitutional checks on Presidential authority.
This isn’t about abortion—it’s about power.