On the floor of the Senate at the end of January, Chuck Schumer condemned the actions of Donald Trump’s new administration. “This is an explicit assault on our system of checks and balances which have served this republic so well for centuries,” he stated.
In doing so, Schumer tapped into a hallowed American ideal. Probably no narrative about our system of government is more widely shared than this one: that the Framers of the Constitution wisely restrained government power through separation of powers, judicial review, bicameralism, and federalism. Especially in moments of heightened political conflict, many Americans invoke checks and balances as a safeguard against tyranny and essential protection for minorities. Hillary Clinton captured the essence of the prevailing view when she asserted, after Trump’s first win in 2016, that “constitutional checks and balances” are a key part of “an immune system protecting us from the disease of authoritarianism.”
It is thus unsurprising to hear Democrats marshaling these ideas against Trump’s brazen and ongoing attacks on government, immigrants, and political opponents. What these invocations mean as a practical matter is not always clear, however. Some place their hopes in the courts, even as the administration openly flouts many rulings. Others, taken with the promise of “progressive federalism,” urge resistance in blue states. Still others seem eager for a return to “normal,” evoking a golden age of bipartisanship and well-functioning constitutionalism before Trump. These strategies have intuitive appeal because they draw on popular ideas about the virtues of our constitutional system, but they miss something fundamental about our political crisis—and thus about how to resolve it.
The fact is, both Schumer’s and Clinton’s appeals are deeply flawed. Far from serving our republic well, America’s unusual system of checks and balances has paralyzed it—contributing to the very authoritarianism we now face rather than protecting us from it. However well-meaning these venerable invocations, doubling down on America’s alleged constitutional virtues at this moment will only entrench the dysfunction that got us here. If our aim is to safeguard democracy, these dangerous times call for a long-overdue reckoning with the system’s deep vices—and a clear vision for overcoming them.
Indeed, urging a return to normal misses the point that the normal order is widely perceived as a problem. Majorities of Americans across the political spectrum have long understood that their system of government doesn’t serve them well. Institutional obstacles at all levels empower elite minorities to safeguard their own interests and block popular policies that would broadly serve the American people, from universal health care to a higher minimum wage. Of course, Trump’s attacks on political institutions have little to do with constraining the power of elites or advancing such policies; on the contrary, with Elon Musk at the head of DOGE, they are advancing rank corruption and kleptocracy for the benefit of the ultrawealthy and extreme ideologues. But Trump does tap into the sentiment that our institutions are broken. Acknowledging the flaws in our system does not mean endorsing his, or any president’s, unlimited power. Nor does it mean there is no form of checks and balances that can serve American democracy. Rather, it clarifies the necessity and urgency of reforming government so it responds better to the needs of ordinary people.
To advance this goal, we need a frank assessment of how our system of so-called checks and balances works as a real-world set of democratic institutions. The conventional wisdom says that checks and balances forestall the abuse of power. But our particular system constrains the public far more than it constrains elites. By obstructing ambitious political changes, it enables those who benefit from the status quo to protect their powers and privileges. Instead of celebrating this structure, we should recognize that ordinary Americans have been trying to overcome it for two centuries. That, in turn, requires expanding our understanding of checks on power.
It also requires a proactive political agenda. Fortunately, we do not need to reinvent the wheel on this front. U.S. history is full of successful struggles to reduce opportunities for elites to block needed reforms. Labor activists, abolitionists, the civil rights and New Deal coalitions: all have pushed hard against a political structure that protects the “special privileges” of the few, engaging a diverse array of Americans through social movements to make our constitutional system more genuinely democratic. At this dangerous moment for American democracy, their example—not the hallowed appeal to checks and balances—points the way forward.
The core value of American-style checks and balances is restraint: ensuring that government does not get too powerful and is not monopolized by one set of interests. But the focus on restraint has three major flaws.
First, the checks and balances narrative ignores the dangers of government inaction. Democratic governments are supposed to protect basic rights, counteract private power, and advance the public good. But constraining government power does not eliminate the problem of concentrated power. On the contrary, it provides narrowly focused, resource-rich private interests with opportunities to constrain policy reforms that do not serve their interests. Political systems with many checkpoints have a powerful bias in favor of the status quo, which generally benefits elites—particularly economic elites. Such groups and individuals are far more likely to have access to politicians and other power brokers than are ordinary people. Every checkpoint is, in effect, a veto, offering political opportunities to stop policy reforms that threaten entrenched interests. Unlike most democracies, the United States has a tremendously high number of constitutional veto points—in the House, Senate, presidency, courts, and state governments.
The upshot is terribly limiting. Successful policy change requires approval from at least a majority (sometimes a supermajority) of lawmakers in three separately elected arms of government—the House, the Senate, and the executive. Blocking change requires just enough power in one. Even under the best of circumstances, failure is the most likely outcome. Add in aggressive lobbying by wealthy interests, and obstruction is nearly guaranteed. Since the end of World War II, fewer than 5 percent of bills introduced in Congress have become law. In the Senate, the filibuster means that representatives of a fraction of the public can block popular legislation. And in both houses, large, complex committee structures and obstacles to floor votes further amplify veto points. It’s no wonder that studies of lobbying find that it is most effective when it aims to block change.
A standard response to this critique is that checks and balances are designed to force consensus building—a particularly important democratic virtue in a large and diverse country. But if a powerful set of interests benefits from the status quo, why pursue consensus building if simply blocking is an option? That is why so many policies supported by large majorities of Americans (often in both parties) have been blocked at the national level: minimum wage increases; universal, affordable health care; mandated paid family and medical leave; labor protections; immigration reform that secures borders but offers opportunities for seasonal workers and pathways to citizenship; universal background checks for firearms purchases.
Even when major policies do get past political checkpoints, they face the veto of the federal courts. In the latter half of the twentieth century, federal courts validated national legislation guaranteeing equal rights for racial minorities and women—laws aimed at state governments that preserved old hierarchies. These successes contributed to a liberal elite consensus that courts, rights, constitutions, and limited government would serve as guardians of progressive politics. But this period was anomalous, and the focus on courts helped to atrophy mass politics. Historically, federal courts have often served elite interests, and in recent decades, as more reactionaries have been appointed to the federal bench, the Supreme Court has weakened congressional legislation on health care, voting rights, labor, campaign finance, environmental protections, and gun safety, among many other policy areas.
The fact that many Americans have more trust in the Supreme Court than any other branch, even with steep declines in that trust over the past decade, highlights the stranglehold the checks and balances narrative still has on the American political imagination. The repeated failure of government to respond to public demands leaves the electorate confused about political accountability and cynical about the political system. The standard checks and balances narrative then leads to doubling down on the very institutions that thwart democratic accountability in the first place.
A second flaw of the checks and balances vision is its unqualified emphasis on protecting political minorities. The glaring oversight is, which minorities? The one percent are a political minority, as are corporate leaders, large business owners, and philanthropic and well-funded interest groups, which often represent the preferences of groups and individuals on the upper end of the socioeconomic ladder. Elites, by definition, are a political minority. It is typically these minorities that benefit from checks and balances, and ordinary Americans pay the price.
A good example is the repeated failure to implement universal, affordable health care in the United States. It’s not for lack of public support. Some form of universal health insurance has been popular for more than a century. And bills expanding health coverage have been introduced in Congress under nearly every presidential administration since Harry S. Truman’s. The “central issue” of his 1948 campaign, Truman said, was “the welfare of all the people against special privilege for the few.” Yet today, among high-income countries, the United States is alone in lacking universal health care. It also has the highest infant and maternal mortality rates, the lowest life expectancy at birth, and the highest death rate from causes amenable to health care prevention, even as it spends considerably more.
The most common explanations point to the raw power of the health care lobby, including the American Medical Association (AMA), insurance and pharmaceutical companies, and for-profit hospitals. Others argue that, though public opinion polls can tell us what the public wants in the abstract, they don’t account for public opposition to specific policy proposals. Perhaps Americans aren’t so keen on universal health insurance after all.
The problem with these explanations is that formidable medical interests, business opposition, and skeptical publics exist in other wealthy democracies, yet the United States is the only one that lacks national, universal health coverage. What distinguishes this country is the unusually complex array of veto opportunities that opponents of health care policy reforms can access. It isn’t lack of broad public support that hinders compulsory health insurance; it is the ability of powerful, discreet interests to capitalize on the multitude of checkpoints.
For most of the twentieth century, the AMA, American Hospital Association, and similar groups worked hard to find enough sympathetic lawmakers in one chamber or the other to kill off proposed bills, often by targeting key committee members. Meanwhile, white Democratic lawmakers in the South, eager to keep federal rules and scrutiny away from their deeply segregated and unequal economic institutions (including medical facilities and professions), opposed members of their own party on health care reform. From the early twentieth century through the 1970s, when Democrats controlled either chamber of Congress, Southern Democrats maneuvered themselves into chairing two of the most important committees, the House Ways and Means Committee and the Senate Finance Committee. The convergence of interests between white Southern Democrats and geographically dispersed business elites—groups that hardly represented a majority of Americans, it is worth noting—kept many bills from even making it to a floor vote.
But bills were stymied in other ways as well. In the 1970s, for example, Nixon governed with a Democratic Congress, and a bipartisan health care plan even made it out of the Ways and Means Committee. But Democratic Committee chair Wilbur Mills refused to bring it to a floor vote out of concern that it would not pass the full House, depriving Americans of an opportunity to identify the bill’s opponents. In another alliance of strange bedfellows, some powerful Democrats and a few labor unions joined the AMA in opposing the bill, which they felt was not comprehensive enough. During his reelection campaign in 1972, Nixon blasted Democrats in Congress for not moving a health care bill through Congress, much as Truman did to Republicans in 1948.
Finally, after decades of effort, the Affordable Care Act (ACA) was passed in 2010. It was a formidable bill, but its architects seem to have come to terms with the many veto opportunities that would be exploited by the determined opposition. The bill shored up the private insurance industry, limited its application to companies with at least fifty employees, required an individual mandate but no public option, and doubled down on federalism by expanding health care coverage through state Medicaid programs. This latter point proved to be the Achilles heel when the Supreme Court declared Medicaid expansion an unconstitutional exercise of Congress’s spending power. As a result, many Americans who would have been covered by the bill were left out.
Americans understand that the political system is unfairly dominated by elites, and they have long resisted the idea that those with the most economic and political power should control national policy. This applies to older titans of railroad, coal, oil, and steel industries and newer concentrated forms of wealth like pharmaceuticals, health insurance companies, real estate magnates, and tech giants. The conventional wisdom’s abstract appeal to the interests of political minorities completely obscures the fact that it is powerful minorities, more than vulnerable ones, that have the greatest access to checkpoints.
A final and particularly pernicious flaw in the conventional checks and balances wisdom is that the fixation on restraining government obscures the crucial role of the public in demanding policy action in the public interest. Some blame the fact that Republicans control both the White House and Congress for why traditional checks and balances aren’t working. But unified government is important for getting government to do the work that the people want it to do. Over the past century, many if not most of the major policy enactments that Americans generally want to protect or even expand—like Social Security and Medicare, minimum wage, labor organizing, and civil rights—were enacted during the New Deal and Great Society, when one party decisively controlled both the legislative and executive branches and responded to broad social movements and public demand for change.
This is another reason why simply calling for congressional checks on Trump without tying them to a positive governmental agenda is a limited strategy. The problem is not that Republicans in Congress are acquiescing to the president’s actions. The problem is the substance of the president’s actions, which are self-dealing, undemocratic, authoritarian, dangerous to democratic foundations (including due process, free speech, free press, and impartial courts), and antithetical to the economic uplift of working Americans he pledged on the campaign trail. Abstract appeals to checking the president without a clearer vision of what government should do risks reinforcing the same old narrative that powerful political minorities use against presidents genuinely trying to produce effective public policy.
Indeed, while checks on government are essential to constraining the dangers of arbitrary power, we rarely think about mass politics as one such check. Quite the contrary: some political appeals to checks and balances suggest that dangerously misinformed and morally backward mass publics are the primary drivers of authoritarianism, while more responsible elite institutions must work to keep them in check. On this view, the majority of the American people themselves are the problem, and GOP elites today are simply responding to them.
In reality, the rise of Trump in the Republican Party owes a great deal to the unresponsive Republican establishment, not only at the national but also local level. Decades of GOP policies in Republican-led states led to poor economic outcomes for the many and growing wealth for the few. Low taxes, federal income transfers, and military bases helped keep states like Louisiana, Oklahoma, and South Dakota stable for decades. But when free trade and globalization upended this system, Republican lawmakers in many of these states only made matters worse. Instead of investing in hospitals, universities, and public infrastructure, they slashed public services and adopted increasingly aggressive anti-regulatory, anti-tax policies. This state of affairs proved fertile ground for extremism among rank-and-file Republicans. Party leaders not only opened the door to Trump; they failed to understand the breadth and depth of resentment he tapped into.
Democrats, for their part, largely wrote off these voters, embraced some of the same economic policies as Republicans, and then failed to understand that the wider frustration with elite governance and institutional inertia applied to them as well. While conservative elites spent decades masking powerful economic interests as vulnerable political minorities, liberal elites contributed to the majority tyranny myth by assuming that college-educated elites know more about the needs of the people better than the people themselves. If we are keeping a ledger of anti-democratic behavior, we must account for the self-dealing and repressive actions of elites, who are more often the ones breaking democratic norms and institutions. As political scientist Larry Bartels puts it, “democracy erodes from the top.”
Tempering extremism in the United States therefore requires constraining elites more than constraining majorities. The checks and balances narrative paints the government as a perennial danger to the public and opponents as engaged in heroic struggles to check its overreach. In reality, it is often the other way around: government action could protect the public from the dangers of concentrated private power, but elites exploit our complex system of checks and balances to block it.
Where do we go from here?
Many paths are open, none of them easy or assured. Some have looked to American federalism itself as a source of resistance to Trump’s abuses of power and a bulwark against creeping authoritarianism. The day after the election, California Governor Gavin Newsom declared his intent to “stand with states across our nation to defend our Constitution and uphold the rule of law.” “Federalism is the cornerstone of our democracy,” he added. “It’s the United STATES of America.” Meanwhile, some scholars have noted that, given the country’s deeply decentralized decision-making on core government functions, such as state courts, elections officials, and law enforcement, it would be difficult for the Trump administration to commandeer all of these institutions in a majority of American states, let alone all fifty.
That is probably true. But if Americans champion these arrangements, they should not do so by embracing the constitutional authority of state governments, itself an obstacle to effective governance. The fact is that American-style federalism has long served as a veto of the national public interest by allowing for legal challenges against duly enacted national policy in the public interest and by facilitating state-level variation (and hence inequality) in government standards and effectiveness.
The brutal history of racial subjugation is the starkest example. As far back as the 1840s, powerful plantation enslavers made forceful constitutional arguments for the rights of slaveholding states to exercise a veto on the national government when questions of slavery were at stake. This argument about state power persisted, even after the Civil War amendments plainly ended any such constitutional claims, and the virtues of federalism and states’ rights became central to white segregationists’ political and legal efforts to protect racial hierarchy. The power of white Southerners in Congress provided a formidable obstacle to national voting rights enforcement and anti-lynching legislation, for example, which left Black Americans exposed to lawless violence and repression.
The major aim of the radical Republicans after the Civil War was to alter the Constitution so that national authority would prevail over Southern elites who monopolized power with an iron fist. After the Fifteenth Amendment barred states from abridging the right to vote on the basis of race, it took a century of tireless and dangerous work on the part of dedicated civil rights activists to formally quash this power. Even then, national nondiscrimination rules and enforcement were repeatedly killed off by checks and balances, often in the Senate, where malapportionment and the filibuster give Senators representing a minority of Americans disproportionate power. In 1966, for example, an effort to amend the 1964 Civil Rights Act to bar discrimination in the sale and rental of housing fell prey to a Senate minority. After passing the House, the Senate failed to end a filibuster with a 54–42 vote—a majority, but short of the two-thirds supermajority to overcome a filibuster then required by cloture. By this point, some northern Republicans, who had been champions of equality under the law, were already shifting course; the filibuster was led by Everett Dirksen from Illinois.
Federalism also plays a significant role in deep geographical disparities in health and economic outcomes more broadly, which in turn contribute to the persistence of material racial inequality. The rallying cry to devolve constitutional authority to states and municipalities assumes that smaller constituencies are less susceptible to private, elite dominance than larger ones. But power asymmetries may be even worse at the local level. Moreover, appeals to local policy preferences obscure the many economic experiences and preferences that Americans have in common, like a living wage, public safety, affordable housing, quality public education, and so on. Abstractly reinforcing the veto features of federalism, then, won’t generate more democratic accountability in the long run.
A more promising strategy is to make constitutional reform a public priority by acknowledging the wide gap between our political institutions and genuine democratic accountability. There are ways to do this without tearing down the Constitution or the Framers. Older traditions that articulated demands in terms of anti-oligarchy, equality of the law, and social progress all have constitutional roots. However unlikely constitutional change is the short term, this is exactly the right time to put amendments and statutory reforms on the agenda that could expand public pressure on elites, such as passing a national voting rights bill, limiting gerrymandering, eliminating the Electoral College and ensuring a majority vote for the winner, amending lifetime appointments for federal judges, reducing the power of the Senate in national policymaking (perhaps as a body that can delay but not veto), expanding the House of Representatives to better represent the people, giving Congress the power to regulate money in elections, and clarifying the scope of executive power—to name just a few.
But such reforms must be part of a larger vision that seeks to open the political system to the interests of ordinary Americans. If these reforms seem likely to fall prey to the very veto points they are trying to overcome, how about a constitutional amendment that gives regular people a constitutional role, such as citizens’ assemblies with a direct voice in Congress? The heads of political parties, interest groups, lobbying firms, business organizations, and other elites across the upper echelons of the income ladder might react with horror to such a proposal. That they would feel free to publicly express this view speaks volumes about how little we think of the ability of mass publics to play more of a role in establishing the rules that govern us all.
Working out the details of these and other proposals—and developing the power to advocate for them—will not happen overnight. But we must not resign ourselves to the idea that we are destined to live with our broken system forever. In fact, nearly all of the substantive amendments to the Constitution since the Eleventh in 1795 have made it more inclusive, more democratic, or sought to strengthen the national government and make it more effective. It took forty-two years from the time women’s suffrage was first introduced in Congress until its ratification in 1920. Constitutional change has happened before, and it can happen again.
The key to this and indeed any other strategy for rescuing American politics is to pursue the only remedy with a track record of overcoming the juggernaut of American veto points: mobilizing mass majorities on the basis of responsiveness to ordinary people’s needs. There is simply no substitute for good, broad-based politics that recruits sufficient numbers of voters to the cause. Such movements are themselves democratic institutions. Mass publics already support economic and social policy reforms that would benefit the vast majority of Americans, including racial and ethnic minorities and low-income people.
One of the tragedies of the checks and balances narrative is that it gives the impression that mass majorities routinely pose great danger to marginalized political minorities—especially racial and sexual minorities. On the contrary, Americans today are broadly supportive of equal treatment under the law, protections against discrimination, fairness of economic opportunity and social policy provision, and even the diversity, equity, and inclusion initiatives that Trump has attacked so vigorously. Cross-racial organizing has a long and proud tradition in American politics, with substantial successes. Where these efforts fail, the problem in many cases arguably owes more to the country’s excess of veto opportunities—and their effective use by an intense, elite white minority—than to majority preferences. By elevating extreme but minority positions, our deeply fragmented political structure has the effect of making it seem that Americans are more divided than they actually are.
The 1966 efforts to amend the Civil Rights Act and the failed health insurance bills of the twentieth century are cases in point. Trump’s approach to governance so far is another: he has focused on bypassing the Republican-controlled Congress through executive orders not just to work quickly or “flood the zone,” in the words of Steve Bannon, but to avoid failure, since much of his agenda is unpopular, even among Republicans. The complexity of American checks and balances provides many opportunities for organized and resourced opponents to empower parts rather than the whole. But savvy activists, organizers, and leaders of both political parties and social movements should consistently point this out for what it is: powerful actors resisting reform because it would reduce their power and influence.
A revitalized, mass democratic politics that holds mainstream parties accountable has the potential to limit the ability of elites to monopolize power and neglect public need, as well as to constrain the extremists that threaten American democracy. Given the recent history of the GOP, the most promising avenue for such politics will be through the Democratic Party. Broadening the party’s political power in a massive way will hardly be easy, given both the deep divisions between liberals and the left and the large number of Americans who have opted out of partisan politics altogether. But it is not unprecedented; most major reforms to American politics have been partisan and majoritarian.
U.S. history is filled with examples of political conflicts challenging the institutional status quo. Elite power was a major point of contestation in the early Republic and, in the form of plantation enslavers, a central cause of the Civil War. It animated Americans in the late nineteenth century as they pursued Reconstruction. It motivated some of the most important socioeconomic policies and democratizing moments of the twentieth century, from the labor movement and women’s suffrage to the civil rights movement. And it has powered the revival of private-sector union organizing in this century. If Americans had a better understanding of this history—how American-style checks and balances really function, and Americans’ repeated efforts to overcome them—a new vision of the constitutional system might gain traction.
The bottom line is that democracies depend not only on ensuring that the full demos can participate, but also on guaranteeing that political institutions have sufficient power for the demos to exercise influence over society’s most entrenched and influential individuals and groups. Americans have been fighting for both since the ratification debates of the eighteenth century. It is imperative to recognize that this is the fight we now face once again.
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