The Real Checks And Balances

It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.) 

We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)

Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.

All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.

A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.

Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.

Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.

What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.

Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”

Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.

The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.

I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.

Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.

The question going forward is:  how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education. 


  1. “The question going forward is: how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education.”

    I seriously doubt that all but 2 or 3 commenters here disagree that a significant improvement in civics education is step one. My question is, WHEN should it begin? Is there a way to begin at elementary levels with some of the basics as we learn socialization along with the A,B, Cs? Fundamental Constitutional civics wouldn’t be understood until upper grades. By then; we have formed our ingrained culture, tribalization and acceptable – or unacceptable – behaviors at home within families.

    The culture I learned at home was racist,bigoted, staunch Republicanism, physical abuse which became emotional abuse, puritanical attitudes toward sex and voicing any opinion was “back talk”. Dad drank a lot and Mom cried a lot. I thought the public view I had of my friend’s home life was the “norm” but as my friends and I entered our 40’s we began to open up and the truth was that my home was like most others of that generation. There was no one to talk to outside the home and only Dick and Jane with their loving Mother and Father and their dog Spot as examples in school; neither civic or civil rights or protection were issues. Church education was Bible stories. It is much more difficult to unlearn destructive beliefs and behaviors once we enter our teens. Some form of “civics” instruction is needed during our early years to make actual “civics” understandable and acceptable in time to make a difference in our lives.

    Just my opinion as I watch the Trump presidency and his administration being accepted and economically supported by millions of Americans – which would include my parents were they still alive. Culture is vital and “…most behaviors are not simply the result of explicit laws or rules”.

  2. I agree that more civics classes would help, but I think that our current, unprecedented income and wealth inequality is major cause for the divide in our society. Trump diverted the attention White people who were left behind financially (and others who hold racist, misogynistic beliefs) and gave them a reason to hate Democrats, or the “libs.” He successfully diverted their attention from the real reason for their pain.

    Our system of capitalism is broken. We need to spend more money on programs helping people left behind and less money on tax cuts and incentives for people and corporations on the high end of the income spectrum. Before the pandemic, our income and wealth divide was as great as it was in 1928. It’s exponentially higher today and getting worse.

    The question on January 21, is whether President Biden can restore faith in the system and whether Republicans can move beyond Trumpism to begin repairing the damage.

  3. More than ANY of the formal or informal “checks and balance,” what saved our country was Trump’s utter and absolute incompetence. Had he just possessed and demonstrated an ounce of intellect, competence, or strategy—together with Republicans complete acquiescence in Congress—Trump’s fascist/authoritarian take over of the country would very likely have succeeded.

    As it was, he did enormous lasting damage, and almost certainly cost the United States several decades of advantage.

  4. Perhaps before we teach civics in school, students need to be taught lessons in “fairness, honesty and truthfulness”. Open discussions about why these things are important with students being allowed to express their own experiences would go along way toward building a collective understanding of the importance of these norms not just to individuals but to all of society. Using these norms, then teach civics.

  5. What we have discovered during the past four years is that there must be a consequence to flaunting the Constitution. What good is oversight, if the overseen simply refuses to do what is expected, knowing full well that nothing will come of it? There is still an ongoing suit over violations of the emoluments clause, but again there is no prescribed penalty for the violation. We can only assume that was what impeachment is for, but look where that got us. We have to look for other remedies.

  6. As a retired 40+ year veteran educator from the Hoosier state, I can assure you we ARE teaching civics- but whether they are LEARNING it is another story.
    There are plenty of states around the country who do not have the same requirements for a civics curriculum as Indiana.
    Our kindergarten teachers start with simple exercises that stress community.
    There are activities throughout the elementary years that are taught with creative, hands on experiences to get our students involved in learning everything from Indiana history to how governments work.
    Of course, parents could back those up with addition sources to help, if they have the ability.
    Thats why my area schools take the annual fourth grade trip to Connor Prairie and the 5th grade trek to the Chicago Museums of History, Science and Industry, or spend a day in local county and municipal governments.
    There are so many creative ways we teach ‘civics’ in the Hoosier state that go unrecognized by the average citizen.
    Additionally the HS graduation requirements in Indiana include US History and senior year Government class.
    But is this done on a national level?
    Are other parts of our country as aware of the need for this instruction?
    Are they finding ways to make Social Studies classes impactful on our students?
    I know many who are doing just that, include a little Jr.High in Elkhart County that still provides an opportunity to see first hand how governing works by using an old fashioned Student Council.
    As stakeholders in our communities, we need to get involved by asking educators as well as school boards how they are meeting this need.
    Hold their feet to the fire.
    Ask what and how it’s being accomplished.
    You may even want to volunteer in any way to get involved in our students lives to make it real for them.
    Finally, remember you can lead a horse to water….

  7. The problem with Mr. Wu’s article is it’s based on incorrect information. According to the article, he makes an incorrect statement:

    “The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.”

    Once again, our government functioning today is not anything like it was when it was set up as a republic. I’ve attached a good paper on the subject which includes Ben Franklin’s famous response when asked what kind of government they set up, his response was:

    “A republic, if you can keep it.” The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.”

    Furthermore, Mr. Wu failed to mention anything about the free press set up under the freedom of expression clause. The press was given immense power to check those who work in the public sector comprising government operations. The truth-seeking journalist was given an amazing role to play in our society but it had to be free from the constraints of government.

    Without the free press, clear of any government restrictions, how is it possible for the people to make an informed decision on who to vote for in an election?

    Plato had much to say about republics as well. Remember his famous point:

    “One of the penalties of refusing to participate in politics is that you end up being governed by your inferiors.”

    Therefore, my researched opinion is the cause of our republic being in such poor shape (kakistocracy) is twofold:

    1) Our free press has failed to perform its constitutional duties of holding the powerful in government accountable; and,

    2) Citizens aren’t voting like they should under a republic.

    The result is dysfunction. The evidence is everywhere in plain sight. We aren’t a functioning republic, but an oligarchy that also controls the free press and both political parties.

    No wonder people stopped voting.

    The solution is to remove all barriers and conflicts of a free press. Last I checked, the efforts to hold the number one journalist accountable in the world today, says much about the USA, Australia, and the United Kingdom. Also, on Wikipedia, you can see in plain sight who influenced the Ecuadorian president, Lenin Moreno, to violate international law. Link below.

    How in the world is the USA able to violate a journalist’s right to freedom of speech? Furthermore, Nils Melzer, a special rapporteur to the United Nations already has reviewed Julian Assange’s case and has called it “torture.” See below link:

    And, remove all barriers to allow voters to cast ballots in the USA.

    I could go on, but I think you can see where this is going. Heads are going to roll shortly. We have international laws and laws specific to countries. They’ve all been abused and where is our free press? 😉

    How did I do professor?

  8. A great discussion so far, no doubt more to come. I will drag out (I know y’all are tired of it by now) my fav – teach critical thinking – now more than ever, including visual literacy, media literacy, truth literacy…

    And throwing one more into the pot – it is a pretty well proven tenant that what deters crime is not punishment; rather, it is the likelihood of being caught/charged. This is where the long-term failure of oversight will rear its ugly….rear end. Just take the teeny thing, the Hatch Act, and all its violations in the past four years…no real charges.

  9. Trump would have easily won re-election if Not for Covid-19! Simple statistics tell us a lot!

    White people supported Donald Trump nationally by a 17% margin. Breaking the margins out by college-educated vs. not-college-educated by gender shows:

    Biden only leading with college educated women = +9%

    College educated men = -3%

    Non-college educated women = -27%

    Non-college educated men = -42%

    Trump – had significant support among well off white people also!

    I could easily name at least six areas where I “would think” that white people would be horrified by Trump, but in reality fears, anger, and feelings of entitlement trump the potential anti-Trump sentiment.

    Biden is not committed to “doing good” . “Doing good” is much more than confronting Covid-19 (finally) and helping turn the economy around. Biden has much more of a history of “following” the winds, rather than pushing for positive change. His stands on issues related to racism alone are very problematic.

    Democratic leadership has ignored the needs of Americans who are not upper-middle class as well as BIPOC, except when it is election time. Democratic leadership has never recognized the need for building strategies and following them up with actions that really help people who are not upper-middle class and wealthy.

    We are much more Anti-Trump than Anti-Biden. Where are the plans for ending residential and school segregation? Where are the plans for economic justice for the bottom 97% of the population if not the lower 99%

    Yes, Mitch McConnell – and the Republicans stand in the way! They will remain powerful as long as Democrats can not get at the fears and feelings of Americans. They will remain powerful as long as Democrats are less clever than Republicans so much of the time.

    Why do Republicans speak of “radical socialism”? Why do they use other distorted, inflammatory language?

    Because it works!

    We are relieved that Biden won. Will we now, become emboldened to insist upon positive change that goes beyond Covid-19 and lowering the unemployment figures? We will see!

  10. What does a criminal do?

    Criminals always do their research, for the most part anyway! They probe, they test, they attempt, and initially they might fail! But the continued effort usually will succeed, because there would be no criminals that there wasn’t a pretty decent percentage of success!

    The same with the cyber attacks levied United States companies and many government entities. This obviously had been worked on for a long time, and it was fairly innocuous until someone discovered there was something funny going on.

    It’s the same with what’s been started here with executive power. It has nothing to do with the Constitution, it has nothing to do with the unwritten guardrails, where people of goodwill and good faith will toe the line for democracy, because, that’ll only get you so far! And, that strategy is not sufficient, ever!

    We’ve had a lot of probing going on over the past 4 years, and you best believe that the next one like Trump that comes along will have a better idea of how to circumvent laws and how to project power far beyond what is written or what the norms were. There needs to be an entity that prevents this sort of behavior, an entity that has teeth behind it! Nothing should be left to interpretation, nothing should be left to goodwill! There needs to be laws written in stone! And, there needs to be something other than the Supreme Court which would be able to interpret intent and criminality.

    Maybe a parlay of all judges in the United States, or maybe just all of the Supreme Court’s in the United States, something that would have more eyes on the issue than just a few. The power to pardon oneself should be off-limits, the power to pardon one’s family members preemptively needs to be forcefully rejected! Like I said, written in stone. This in itself would be a guard rail.

    The seditious behavior that we see going on right now needs to be called out and there needs to be individuals paying the price for it! No free pass. Free passes are for movie theaters not politicians. This past 4 years this shows how fragile and how corrupt government really is! This has to be addressed because the next authoritarian it comes along will have his or her way!

  11. Hey Joann my father was also alcoholic and bigoted. Luckily for me my mother was neither of those things. I did not get the gene for alcoholism and I decided to follow my mother’s example.

    Sandy Robert Reich would agree with you on the source of our divisiveness. He states that whenever there is a huge ecomonic divide there is a political divide.

    I think we need more than civics education. We need to give young people (starting perhaps in middle school) opportunities to serve their community. And perhaps we need to require the youth to serve in something like the Peace Corps so that everyone is immersed in cultures different from the one they grew up in.

    When I was in high school I was in Gold Teens. We sang at the nursing homes. I accompanied my peers on the guitar. After my 2nd year in nursing school, I went home to Rushville and interviewed shut in elders for a new “Meals on Wheels” program. My elders instilled in me the importance of serving others, especially those less fortunate than myself.

    The dysfunction in Congress started with Newt Gingrich. I can only hope that the freshman “problem solvers” in Congress will inspire people to become more willing to negotiate and compromise. The far reaching executive orders of presidents has evolved out of the dysfunction of Congress. And yes, I do hope Ossof andWarnock win in Georgia so that President-Elect Biden has more congressional support for his agenda.

  12. The idea that “Criminals always do their research, for the most part anyway” is simply ludicrous. Just as there are different types of crimes (white collar, blue collar, violent, non-violent, misdemeanors, felonies), there are all kinds of criminals. Rarely do any of them do research. Rarely do any of them actually have a plan. Most never think that they will be caught. Case in point, once a bank robber used his own bank deposit slip to write out his hold up note and left it on the counter! One thing you can say generally about criminals is that none of them ever thinks they will be caught. That’s not smart. That’s delusional.
    If we want to see a decrease in crime we need better law enforcement. Much better enforcement. The way things are now it’s as if we think we are living in Dodge City and Wyatt Earp is going to ride in and save us.

  13. Certainly knowing civics is a key to being a properly informed voter. It seems that it may be too easy to jump to teaching as being the shortcoming.

    My sense is that the main source of dysfunction that led so many to not recognizing why Trump was completely unqualified to be President came from people who may have once known that but have fallen into a rabbit hole of social and entertainment media overt and covert Republican advertising to the contrary.

    I can almost remember the first time that I read a post somewhere from an American who had been led to believe that democracy was very risky because it allowed the many to impose on the few. I was astonished but it spread like covid through the Fox News addicts. Coincidence? I don’t think so.

    At the core of these problems is the acceptance of make more money now regardless of the impact on any others ever as effective corporate guidance. Interestingly that seems to be a problem not only here but also in Russia and China which are regarded as countries that are very unrestrained in sacrificing human rights for state mandated progress.

    Of course, all of this comes at a time in human history when the size of our population and the comfort level of our average lifestyle is turning earth’s limited natural resources into indestructible waste at an unsustainable rate.

    Our rate of cultural adaption hasn’t yet caught up to our rate of technological progress.

  14. Perhaps he was too afraid of the reaction of his cult, but if Trump had simply tweeted the following words: “I respect your right not to wear a mask, but I respect even more the right of all Americans to continue thriving in this great country of ours, so I’m ordering all states to abide by a mask mandate for 30 days starting December 1…”, Trump could have won the 2020 election. Just words, no deeds. He could, after his victory, have canceled his mask mandate promise and no one could have changed the election outcome. That how close we came to succumbing to another tin horn dictatorship.

    The democratic world and the values it has historically cherished have changed so much (remember shame?) since 1789 that a major rewrite of the Constitution is required if we are to continue engaging in this noble experiment of self governance. Who’s to say that future corrupt newspaper owners will stand up to a corrupt president and a seditionist leader of the Senate? Who is to say that a 6 – 4 Supreme Court, given something resembling evidence, will not rule in favor of a rebellious plaintiff? Who can demonstrate that civic education will rule the day in a household opposed to American values. Whose to say that a majority of voters opposed to American democracy, for reasons known only to them, will not vote in some creature more destructive even than Trump? Who can show in advance that a General Flynn type of military leader will not capitulate to a president who promises him five stars and permanent leadership of the Army? The South has always dedicated itself to disallowing discussion of these kinds of issues.

    Trump showed that the number of holes in the Constitution is vast, and that, like the Emoluments Clause and biases against nepotism, much of what is written is unenforceable. In the environment which now confronts us, the gaps must be plugged. To the extent they are not, we are exposed to opportunists , probably more clever than Trump or the 73 million people who agree with him that democracy is disposable.

    The contrarians are better armed and more practiced with their weapons than democracy’s supporters. To whatever extent is possible, we must tip the balance in democracy’s favor by means of a Constitution with the bite of a saber-toothed tiger.

  15. I think it is a big mistake to assume that Trump is the cause and not a symptom of our society. I likewise think it would be a mistake to assume we survived this assault on democracy because Trump lost. We are still hanging by a thread.

    A lack of civic education is not the problem, or at least a major problem. I have a lot of friends, extremely well-educated, who know a ton about government and current events, who are Trump supporters and probably support overturning the election by any means necessary. I’ve said this before, the problem is these people live in insolation when it comes to the information they receive. They are constantly fed misinformation from sources (I don’t call them “right-wing” because they’re not really conservative) that constantly reinforce what they want to be true about Democrats. Hatred of Democrats has become an obsession on the right. (I guarantee you if you ask Trump-supporters who is more evil, Joe Biden or Vladimar Putin, a strong majority would pick Biden.) Plus you have social media creating information feedback loop where people’s views are constantly receiving reinforcement from like minded people.

    These people – and many of them are/were my friends – are quiet literally brainwashed. How do you deprogram people who are in a cult? Well, step one is to get them away from the cult. But Trumpers live in a cult, the correctness of which is constantly fueled by the media they consume. I don’t know how you take that media away from them and get them to consider information outside the bubble the live in. Because we can’t force them to do so in this country, we have to find a way to get them to do it voluntarily. That’s a might big hill to climb.

  16. What was remarkable to me was how complicit the GOP was in Trumps attempt at autocracy. The failure of the legislative branch to act as a check on the executive is a true concern. In addition we stand by silent as McConnell continues to block democratic appointments to the judiciary, and load the court with ideological judges that are also a real concern to the checks and balances of the constitution.
    While this slow moving coup d’etat didn’t achieve an authoritarian government, the pieces continue to fall into place to achieve that result.

  17. Civics classes, long with the ethics that underlie civic behavior, and Theresa’s “fairness, honesty and truthfulness,” all need to be taught as early as children are considered able to understand the concepts. Note, however, that pre-verbal toddlers have been found to understand the concept of fairness, in several psychological experiments. These have determined that people are born with a sense of altruism and compassion for others.
    Compassion for others, of any tribe, needs to be taught, as well!

  18. AND, the Fairness Doctrine (I know I’m being redundant, but…). If we are going to be a culture that values “fairness, honesty and truthfulness,” this is not rocket science. Our culture, did not blink, miss a breath, when that doctrine was garbaged, in 1987; garbaged with malice aforethought, I suspect.
    A resurrection thereof, with attendant, deserving PR, would teach, and become a teaching point, for educators, I expect.

  19. Paul,

    I think they’re calling them retrumplicans now, LOL, pretty good!

    But, like has been mentioned before, good graces, best intent, moral prudence, cautious circumspection, and the like, do no good if there isn’t something unbending to hold someone’s feet to the fire, directly on the pathway of justice, equality, compassion, and intellect.

    I suppose just like war, one man’s terrorist is another man’s hero, so who decides on the guardrails so to speak? Also, something that was said before, the human condition is flawed, and even if the holes of our justice system and Constitution have been patched, and things seem relatively good, in a generation or 2, we will have the next test! And, better tools and technology to circumvent those guardrails will have been established.

    When has man treated his fellow man with justice? Not just an individual case or 2, or not just a snapshot from a specific time, I’m talking about on the whole? And, the answer would be, never!

    How do you change society? And if societies are changed, who’s to say it’s good? The examples throughout history pretty much show changing society, changes for the worst not the better. I just think human nature is flawed, it always has been and it always will be. I wouldn’t expect humanity to reach the stars, because humanity will have wiped itself out of existence by that time. Because there never has been and never will be any learning from mistakes made!

  20. The mysteries that seem to surround the events of the past four years become exposed if you take the time to read John W. Dean’s book Conservatives Without Conscience. In it he points out how we’ve come to this, and yes, Trump is a symptom, not a cause of the authoritarianism we have seen to be so prevalent in today’s GOP, but which has been growing like a virus in that party since Nixon.

    In that book (and his most recent one, Authoritarian Nightmare), he shares with us the research of Bob Altemeyer, a social psychologist authority on authoritarianism who has been researching the subject, along with others, for the past 40 years. It explains why those in many cross sections of our society are Trump supporters, from the religious right, to lower middle class workers, or even PhDs in economics. The common denominator is authoritarianism, as measured by two now well accepted scales by those who study such things, the RWA scale and the SDO scale, not lack of education, intelligence, or even social status.

    Authoritarian followers, the largest group, score high on the RWA scale, authoritarian leaders high on the SDO scale, and those who score highly on both are the immoral nutcases in society who sometimes rise to major leadership roles by ruthless means when the members of society are highly vulnerable, and at the height of fear and desperation, as they were in the early days of Nazi Germany.

    As a society, we need to understand better why a large percentage of the world population falls into one of or both of these groups, authoritarian followers, authoritarian leaders, or authoritarian leader/followers. Is it nature, or nurture that puts them in those categories and if it is nurture, what do we need to do to change the characteristics of nurture in our societies to minimize the number of our fellow citizens who grow up full of the fear and uncertainty that seems to drive their authoritarianism? The RWA group, the followers, are the largest and the most important, for if authoritarian leaders have no followers, they are neutralized. Without large numbers of RWAs in the USA, Trump would be just another trust fund little boy that spent most of daddy’s money before he died, often in obscurity.

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