Constitutional Limits on Government

Constitutional Limits on Government

Abraham G. Ghiorgis

Pasted below is an article from Democracy Web that succinctly summarizes the essential points, history and principles of a constitutional government.

“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 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 rule of law, not men ... is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader." 

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Constitutional Limits on Government

By Democracy Web

(I) 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

(I) A. 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.

(I) B. 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.

(I) C. 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."

(I) D. 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.

(I) E. 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.

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.

(I) F. 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.

(II) Constitutional Limits on Government: History

Modern constitutional limits on government are commonly traced back to the Magna Carta, signed in England in 1215. It is considered one of the most important foundation stones in the history of democracy. The agreement, which followed King John's failed attempts to take advantage of feudal landowners and to impose his authority by force, established that even monarchs claiming the divine right to rule had to uphold existing laws and customs and respect the privileges and property rights of their subjects. The most important restriction stemming from the Magna Carta was the king's obligation to seek the consent of the nobility, the clergy, the gentry, and townsmen before imposing taxes on the country. An early incarnation of the modern Parliament met for this purpose under Edward I in 1295; it included major noblemen, Church leaders, and representatives of the counties and towns. The assembly was later divided into an upper House of Lords (including high clergy) and a lower House of Commons. Notably, each district could set its own rules for election to the Commons, and some adopted general suffrage for adult males. Eventually, the country settled on freehold ownership of property worth 40 shillings as the basic requirement for the right to vote. This rule remained in place well into the modern era, and even some U.S. states maintained similar property requirements until the mid–19th century.

(II) A. The British Model

No formal constitution was ever adopted in England, and the United Kingdom is still governed according to an accumulation of parliamentary law, tradition, and practice. Over the centuries, the House of Commons came to dominate the "upper" House of Lords due to its more representative nature. Today, the House of Commons is the true focal point of political power, while the monarch remains the ceremonial head of state. The House of Lords now consists largely of members appointed for life by the monarch on the recommendation of the prime minister, although some high-ranking clergy and hereditary peers remain. The House of Lords can no longer block legislation, but it retains oversight and persuasive powers. A select group of members known as the Law Lords serve as the country's court of highest appeal, although efforts are currently under way to create a separate Supreme Court to take on this function.

(II) B. European Models

While many European countries passed through periods of absolute monarchy before building the institutions of democracy, some maintained considerable checks on their rulers. In the case of the Polish-Lithuanian Commonwealth (1569–1795), a quasi-democratic system was instituted through a covenant called the Henrician Articles. These reserved great powers for the nobility, who made up the Sejm, or parliament. The monarchy became a nonhereditary position elected by the Sejm, and the king could not raise taxes or declare war without the nobles' consent. Weakened by internal division, foreign interference, and warfare, the Commonwealth in 1791 adopted a constitution aimed at extending political rights beyond the nobility and forming a stable parliamentary monarchy, but the reformed state was crushed by its autocratic neighbors. Today, most European countries have some type of parliamentary system, though unlike Great Britain they have written constitutions with clear limits on power and definitions of lawful authority. The other major European model is that of France, which since 1958 has been a mixed presidential-parliamentary system. The president acts as head of state and plays a leading role in setting national policies, particularly foreign policy. He appoints a prime minister and cabinet, who are responsible to the bicameral Parliament, to run the daily affairs of government. Parliament is able to bring down the prime minister and cabinet with a vote of no confidence, as well as block government budgets and legislation.

(II) C. The U.S. Model

As noted above, the framers of the U.S. Constitution were concerned with the dangers of arbitrary government and an overbearing executive. Drawing their ideas in part from republican Rome, the writings of John Locke, and the Baron de Montesquieu's The Spirit of Laws, they crafted a model in which government is divided into executive, legislative, and judicial branches, with specific functions defined in such a way that no one branch, and especially not the executive, can dominate the others.

The executive branch is headed by a president who, aside from the vice president, holds the only nationally elected office and is thus the representative of all the people. However, the president's chief responsibility is carrying out the laws passed by the bicameral Congress. While the president has the power to veto legislation, this veto may be overridden by a two-thirds majority of each house of Congress, ensuring that the president's check on legislative power cannot itself be abused. The president is the commander in chief of the armed forces, but only Congress may declare or authorize war. The president appoints executive officers and federal judges, but the Senate must approve them by a majority vote.

The legislature is purposely divided. The House of Representatives is elected by popular vote in districts allotted to the states according to population; the Senate is made up of two members from each state regardless of population. Wyoming, the smallest state by population, is thus equal in the Senate to California, the largest. The House, elected every two years, is the "people's voice," while the Senate—whose members are elected to six-year terms, with a third coming up for election every two years—is designed to temper the vicissitudes of popular will and act as a bulwark against dominance by larger states. All revenue legislation must originate in the House; the Senate holds the principal power of advice and consent with respect to federal appointments and international treaties. The federal judiciary is protected from both of the elected branches of government through lifetime appointment, so that judges can decide cases based on the law and not political considerations. The U.S. Supreme Court is the final court of appeal, and its interpretation of laws and the Constitution must be respected by the other branches.

Limited government has been reinforced over time through amendments to the Constitution, especially the first 10, known as the Bill of Rights, and the post–Civil War 13th, 14th, and 15th Amendments. (The latter three additions abolished slavery, ensured that the states upheld federally protected rights, and conferred citizenship and voting rights on former slaves.) In addition, states are granted all governmental powers not enumerated for the federal government in the Constitution, meaning they have autonomy with respect to education, police, and other community services. States have their own constitutions that are generally organized under the same principles as the federal charter. The country's multilayered system of constitutional government is often blamed for a lack of decisive action on important matters. This was most notably the case on the issue of slavery, as Southern states, despite being a minority in population, long retained the power to block antislavery initiatives. Still, the system is generally considered to be the key reason for America's success as a democracy, and its relative complexity has generally been a source of resilience rather than a cause of paralysis.

(II) D. The Persistence of Dictatorship

The 19th-century historian Lord Acton once wrote, "Power tends to corrupt; absolute power corrupts absolutely." Such was the case for much of the 20th century, when democracy's progress was challenged by the rise of new types of dictatorship. The abuse of power by Fascist and Communist regimes was so complete as to make most historical examples of autocracy appear liberal by comparison. The death toll was without precedent in history. Adolf Hitler's Nazi regime in Germany caused the deaths of tens of millions of people through war, deprivation, and mass execution, including the genocide of six million Jews, some two-thirds of Europe's prewar Jewish population. There is considerable debate about the number of people killed under Communist regimes, but the higher estimates approach 100 million. Most of these deaths occurred in the Soviet Union and the People's Republic of China, and include fatalities from executions, forced labor, and massive famine stemming from state policies.1 In both Fascist and Communist regimes, even the smallest liberties were taken away, and any expression of dissent could result in arrest or worse. Both types of regimes claimed legitimacy in part through constitutions. Communist variants included lengthy assertions of "people's rights," but in practice there were no actual protections against state power. Absolute authority was granted to the ruling party.

The 20th century also saw the rise of other types of authoritarian regimes: apartheid in South Africa, theocracy, military juntas, and nationalist or populist dictatorships. However, by the end of the century, democracy had supplanted many of these governments. Even Germany and Japan, the militaristic instigators of World War II, became thriving democracies under the postwar guidance of the United States and its allies. Other new democracies flourished after the collapse of the Soviet Union in 1991, with notable exceptions like Russia, Belarus, and Uzbekistan. But the enduring examples of such authoritarian systems, and the dictatorships that remain in the 21st century, make it clear that the preservation of human rights and individual liberty requires not just democratic elections but also effective constitutional limits on government authority.

(II) F. Conclusion

Restraints on those exercising power may be elaborated in a written constitution, as in the United States, or operate as an accumulated body of law, as in Great Britain. In either case, the enforcement of such limits depends heavily on the understanding and vigilance of the people themselves (see also "Consent of the Governed"). However, even a perfectly implemented charter will not ensure citizens' rights if its basic structure permits the accumulation of absolute power by any group or individual. A Polish democratic theorist, Jakub Karpinski, described the operating principle of Communist constitutions:

Ornamental institutions functioned as screens for other institutions in which real decisions were made. The parliament and the "collective head of state," under the name of the Council of State, were screens for the Political Bureau and other agencies of the Central Committee of the Communist Party or even other less formal groups of party functionaries who made real decisions. Decisions in the ruling communist parties were usually made without restraint.

Today, the most widely used constitutional models in the world are those of Great Britain and the United States. This is due in part to the legacy of Britain's extensive former empire and its loose association of democratic successor states, the Commonwealth. The United States similarly gained prominence as it took on a larger political and military role in the world, but its constitutional system inspired others much earlier, particularly the Latin American republics that emerged from Spanish rule in the early 19th century. Many countries also follow the example of France or other models.

While the Communist ideal of the "dictatorship of the proletariat" competed internationally with democracy during the 20th century, it remains the governing principle in only a handful of countries today, such as China, Cuba, and North Korea. 

Source: http://www.democracyweb.org/limits/principles.php