The down side of checks and balances

In comments to this post on Junior Ganymede — a conservative Mormon blog — some argue that hereditary rule is not the way to go. They concede that our country is going down the tubes, but what we need is checks and balances. I replied that checks and balances didn’t prevent legalized abortion and gay marriage (nor, I should have said, no-fault divorce and ubiquitous birth control).

I’m no historian but from my limited reading on the subject, my understanding is that the big issue with checks and balances was to prevent one faction from taking control and lording it over other factions. And the main type of faction with which they were concerned, in that historical context, was religious factions: You don’t want the Puritans or the Methodists or the Calvinists, or, God forbid, the Catholics, taking over and making everyone else’s life a living hell.

So you distribute political power. You divide up the country into relatively small districts, so that even if a faction is dominant in one place, such that it controls an entire district, that’s still only one district among many. A faction may be so large as to occupy several districts, but what are the odds of its being a majority in every one of those districts? Or even if it’s a majority in several districts, it still may be minority in the state as a whole; therefore it may control several congressional districts, yet still not control that state’s Senate seats. And of course, even if it dominates an entire state, that state is only one among many. And again, if the faction is big enough to occupy several states, what are the odds of its being the majority in all those states?

This was a deliberate weakening of individual votes, for the purpose of weakening factions, and specifically, religious factions. This was the reason for the clause regarding no establishment of religion: An official government religion would be ipso facto the dominant religious faction. It wasn’t that they wanted religion banished from government; if this were the case then official prayers could have been banned at the same time. It was that they didn’t want an official religious faction that dominated other religious factions by force of law. This in the interest of ensuring stability for the new government: If there’s no official religion, then there’s no need for people of other religions, in their fervor and zeal to lay down their lives in the service of God, to try to overthrow the official religion and replace it with their own.

The Founders would have been horrified at the idea of legalized abortion and gay marriage. But this wasn’t their concern. Their concern was ensuring the stability of the new democracy by controlling factions. Why weren’t they concerned about legalized abortion and gay marriage? It simply didn’t enter their minds. Such things were miles from the realm of the possible, in their day and age. But thanks to that unconcern, they have now become our reality.

Checks and balances are wonderful for what they can do: They have indeed prevented any religious faction from oppressing or suppressing any other. But the question is, what are they designed to check? Dominance of one faction over another. What kind of dominance? Positive dominance, where a religious faction wants to limit the freedom of others to worship as they please. In other words, the checking in “checks and balances” is the checking of coercion in matters of religious belief. So what are you left with if coercion in religious belief is eliminated? You are left, my friend, with what we see before us today: The elimination of religious belief as a legal ground for morality, and thus, no legal ground upon which to oppose abortion, gay marriage, no-fault divorce or contraception. We were utterly defenseless against the sexual revolution.

The Founders never foresaw this. Such things would have seemed impossible in their day. Why? Well because of religious coercion, of course. They grew up in a time and place in which such things had been legally as well as religiously and morally proscribed from time immemorial, through centuries of religious coercion. They could never have survived within their social framework; had anyone proposed them within that framework, they would have been instantly snuffed out, through social means, i.e. shaming, but also legally.

The inconceivability of the sexual revolution to the Founding Fathers was borne out by experience: For the first nearly 150-some years of the country’s existence, nobody thought there was anything strange about forbidding abortion and gay marriage. As to gay marriage, it simply would never have entered anyone’s head, it was so absurd given their cultural assumptions. So even though the Constitution no longer provided any basis for forbidding such things on legal grounds, it still never entered anyone’s head to try to remove the prohibitions.

In other words, they didn’t think it necessary to spell out any moral requirements in the Constitution, nor any religious basis for those requirements to be recognized in law, because the requirements were engraved on their hearts, so to speak. Of course, having eliminated the possibility of an official religion, it’s hard to know what religious basis they could have claimed which could have had legal standing. And that’s just the thing, right there: They made no provision for a religious basis for morality in law. Indeed, they specifically excluded any such basis, save in vague platitudes with no binding force.

No, sir, our problem is not a lack of checks and balances. Checks and balances, or the restoration thereof, are not the solution, they’re the problem. Checks and balances are not there to prevent the irreligious from lording it over the religious – quite the opposite. They were certainly not intended to allow the irreligious to lord it over the religious, but in ensuring that no one religion could lord it over any other, they made it so that religion could not even lord it over irreligion, nor morality over immorality.

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