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Constitutional Limits on Government: Essential Principles

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
Massachusetts Constitution, Part the First, Article XXX, 1780

Limiting the Power of the State

The original purpose of constitutional limits on government was to check the arbitrary actions of hereditary monarchs who abused their power, imposed unwanted taxes, or launched unpopular wars. Using agreements like the Magna Carta (see History), nobles with substantial property forced the principle of restraint on European monarchs, although mainly through consultative institutions. Over centuries, through popular revolutions or the evolution of representative institutions like parliaments, there developed greater checks on power and a greater separation of government into independent branches. Under unwritten and written constitutions, rulers could no longer act unilaterally against the will of the people and instead had to gain approval from parliaments and obey established law. This gradual development of constitutional limits on state power sometimes occurred in societies on other continents, but generally the major states of Asia, Africa, and the Americas did not impose such explicit, institutional curbs on their rulers.

The American founders were deeply skeptical of direct popular rule. Representative democracy, they argued, was far superior because the buffer it created between the people and state policy allowed for reflection, reasoned debate among differing positions, and compromise between opposing interests.

Self-Governance and Constitutional Limits

The modern experiment of popular self-governance, which began to expand rapidly in the late 18th century, aimed to limit state power through the people's will rather than the interests of the nobility and gentry. The people, formerly subjects of the crown with few rights, became citizens with full and equal rights, regardless of class. And the government became the instrument for carrying out the people's will as expressed through their elected representatives. Mindful of the experience of tyrannical monarchy, newly self-governing societies adopted constitutional limits that defined the specific authority of the state, forbade its agents from violating basic rights, and divided government into distinct branches that would check and balance one another, preventing any single branch from amassing too much power and abusing its authority. Although in the United States this idea of self-government originally applied only to white males with sufficient property, and coexisted with the heinous practice of slavery, over time the concept was expanded to the current universal understanding that government should be of, by, and for all the people.

Direct and Representative Democracy

Some political philosophers have argued that direct democracy—in which all citizens vote directly on the laws and policies of a political community—is the ideal form of government. Direct democracy, however, has generally proven impractical, and there are few examples of it in history. Even ancient Athens, ruled by a democratic assembly of all its male citizens, relied on elected officials to some extent, and it ultimately failed to maintain its independence in a hostile region. Town hall meetings, where basic policies of small municipalities are set, also serve as mechanisms for the election of representative officials. Similarly, within local associations and trade unions, members elect officers and committees to carry out their decisions. Indeed, while some decisions may or even should be made by referendum (all citizens voting on a particular issue), few sizable groups of citizens have been able to conduct their affairs solely on the basis of direct democracy.

The American founders were deeply skeptical of direct popular rule. Representative democracy, they argued, was far superior because the buffer it created between the people and state policy allowed for reflection, reasoned debate among differing positions, and compromise between opposing interests. Direct democracy to them meant the potential of tyranny of the majority over the minority, or worse, mob rule, without any restraint on popular impulses or abuses of power. Today, democracy is generally understood as a system of freely elected representative institutions with constitutional limits. (See also "Consent of the Governed," and "Majority Rule, Minority Rights."



Thomas Paine

Parliamentary Democracy

This understanding applies both to the parliamentary system, in which an executive prime minister and cabinet are chosen by the majority party or coalition in the legislature, and to presidential and mixed presidential-parliamentary systems of government, in which the separately elected president holds substantial executive powers. The parliamentary system is the most common form among the world's electoral democracies. While it has fewer constitutional checks and balances among the branches than presidential or mixed systems, the basic principle of limited government is upheld and abuse of power restrained with the help of tradition, evolving law, independent news media and judges, and in some cases a constitutional monarchy. Such monarchs are typically limited to symbolic functions, but they can play a stabilizing or mediating role in times of political crisis and protect against abuse of power.

The Rule of Law, Not Men

Constitutional limits are based on the idea that the power of the law—the rules laid down by the people's representatives—is superior to the power of any individual or group. In his influential pamphlet Common Sense, Thomas Paine noted that in absolute monarchies, the king is the law, while in free self-governing communities, the law is king. The separation of powers by means of a constitution ensures that no individual is able to dominate the government and create his or her own law. The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens.

The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens.
Of course, in a number of instances in U.S. history, the supremacy of law has been invoked for wrongful or immoral purposes that contradict the meaning and intent of the Constitution or of freedom itself. The Dred Scott (1857) and Plessy v. Ferguson (1896) decisions, in which the U.S. Supreme Court upheld slavery and racial segregation, respectively, are notorious examples of the rule of law gone terribly wrong. Ultimately it is the people who must overcome such contradictions through legislative action, electoral changes, public protests, or, as a last resort, revolution. Still, while all democracies have examples of individuals who must challenge existing law to achieve a higher moral purpose, the basic precept that John Adams built into the Massachusetts constitution — "a government of laws and not of men" — holds an important place in the mechanism of democracy. It is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader.



Dred Scott

Dictatorship

The modern antithesis of popular self-governance and the rule of law is dictatorship, in which an authoritarian ruler, junta, or oligarchy rules by decree, exercising powers similar to those of the historical monarchs described above. A dictatorship may have a constitution, but in practice it serves to expand rather than limit the powers of the state and grants most if not all authority to the leader or dominant group. Under such regimes, the constitution can often be changed with little or no real input from the people. The result is extensive abuse of power (the terrible consequences of which can be found in the Country Studies in the Not Free category). Occasionally, dictatorships adopt liberal constitutional provisions for appearance's sake or to placate international opinion, offering citizens some possibilities for organizing change (see, for example, the South Africa Country Study, or the Chile Country Study). Some constitutions pledge full adherence to basic principles of human rights or self-governance, but also include language that allows some higher authority—a leader or ruling party—to override those principles in the name of national security or a major ideological priority.