Constitutional Limits on Government: Essential Principles

A Constitution in a Democracy

A constitution is the accumulation of laws and established practices that govern a state and a society. In some states (like the United Kingdom), there is not a formal written constitution but instead a set of fundamental acts, other laws and traditions that are respected and followed. In most nations (as in the United States), there is a written constitution that establishes the basic or fundamental law, the principles and practices of government and the ways by which the constitution may be amended (e.g. by plebiscite, by supermajority of an assembly or approval by constituent territories or states).

In democracies, it is the people ─ through the exercise of the franchise (the right to vote) and other basic rights (expression, association, assembly and others) ─ who ultimately place checks on the abuse of power or its use against the people.

A constitution in a democracy (written or unwritten) both grants and limits powers to the government to serve the interests of the people. It also grants and limits rights to the people in a manner the government must respect. The constitution is the framework under which a polity agrees to conduct politics through peaceful means. A key element in democratic constitutions is ensuring the consent of the governed through free and fair elections (see previous sections).

Constitutional limits must therefore be placed on elected governments to prevent them from aggregating power, violating the people’s rights and denying their ability to continue choosing their representatives freely. The basic means to ensure democratic government is through separation of powers among its branches and territorial divisions and the placement of checks and balances on their authority to prevent a concentration of power in one branch. In dictatorships, a constitution serves the opposite purpose: to concentrate power in the state ─ and usually in one leader ─ to rule over the people without constraint.

In democracies, it is the people ─ through the exercise of the franchise (the right to vote) and other basic rights (expression, association, assembly and others) ─ who ultimately place checks on the abuse of power or its use against the people. 

The essential principle of constitutional limits does not mean small or limited government. The size and scope of government is a matter of policy for the people to decide within a constitutional framework. 

Preventing the abuse of power in the normal functioning of government also relies on those elected or appointed to office respecting limits placed on their power by a constitution. When those limits are not respected, but exceeded, and the separation of powers is breached, democracy weakens and may become vulnerable to authoritarian-style leaders who abuse power.

The essential principle of constitutional limits does not mean small or limited government. The size and scope of government is a matter of policy for the people to decide within a constitutional framework. Most modern democracies have adopted policies that generally enlarge the scope of government and the policy issues debated are to what extent it should be enlarged (or not). Disputes among political parties focus around the types of policies adopted (such as whether they favor business or labor, greater or fewer public services, greater or lesser protection of the environment, and so on).

What is essential to the principle are limits on the concentration of power in one person, group or branch of government. Absent constitutional limits, government may become an instrument to oppress the people and prevent the people’s will from being expressed.

Limiting the Power of the State

An original purpose of establishing formal limits on government was to check the arbitrary actions of absolute monarchs or rulers who abused their power, imposed unwanted taxes and launched unpopular wars. Often, an aristocracy (nobles or large landowners) forced the principle of restraint on hereditary monarchs claiming an absolute right to rule through written agreements like the Magna Carta Libertatum (the Great Charter of Liberties) and the Henrician Articles (see History), or even just unwritten understandings. From this process arose certain consultative or representative bodies.

Over centuries, through the evolution of representative institutions like parliaments or, as necessary, through popular rebellion, there developed greater checks on centralized state power. There was a separation of government into independent executive, legislative and judicial branches. These had specific authority and exercised distinct and defined powers. As a result, rulers could no longer unilaterally enact decrees or wield arbitrary power through “Star Chambers” (the name for the arbitrary court of British monarchs). Instead, they had to gain approval from parliaments ─ which had increasing representation and authority over time ─ to pass laws. They also had to obey the judgments of duly established courts, which interpreted and applied the law and legal traditions independently of the executive or legislative branches (see History in this section and Rule of Law).

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. Certainly, direct democracy, or plebiscite, is often the means of establishing consent of the governed. In many countries plebiscites and referendums are also used to adopt specific policies. (This has been the case in many US states in recent elections.)

Direct democracy, however, has proved impractical as a means of national governance and there are few examples of it in history. No sizable groups of citizens have conducted their affairs on the basis only of direct or participatory democracy. Even in classical Athens in the 5th and 4th centuries BCE ─ viewed today by many historians as a positive example of direct democracy ─ constitutional limits applied. Citizens restricted their decision-making according to existing laws and elected representatives to carry out decisions of the general assembly (see History).

Today, democracy is understood to be a system of government with freely elected representative institutions and constitutional limits.

In the United States, many of the Founders held the general historical judgement of their time that Athens was a negative example of governance and were deeply skeptical of direct popular rule. To them, it meant the potential of tyranny of the majority over the minority or mob rule. They argued that a republic, which meant a system of representative democracy, was superior. Representative institutions of government, operating on the principle of majority rule, were the essential mechanism for setting policy for a nation as a whole (see also Majority Rule, Minority Rights).

Today, democracy is understood to be a system of government with freely elected representative institutions and constitutional limits.

Self-Governance and Constitutional Limits

The modern experiment of self-governance established the legitimacy of the state’s power through the people's will rather than through the divine right of a monarch or through the united interests of a select nobility or property-owning class. The people, formerly subjects possessing few rights, became citizens with full and equal rights.

Self-governance in the United States initially restricted the franchise, or right to vote, mostly to white males with property or taxable status. In practice, due to more widespread property ownership, there was a radical enlargement of the electorate in comparison to Great Britain. In revolutionary France, initially there was general manhood suffrage, although the franchise there was quickly limited (see History in Free Elections).

The opposite of self-governance is dictatorship. There, a single ruler, group or political party assumes control over the government without respect for constitutional limits.

In both cases, and also more broadly in other countries, the foundational basis of self-governance ─ equality in political and civil rights ─ over time led to universal suffrage: all citizens of a qualifying age regardless of class, race and gender (see also Free Elections).

The government thus became the instrument for carrying out the people's will as expressed through their elected representatives. As the franchise grew, so did the authority of the people to empower the government to act in their general or common interest.

Given the experience of tyrannical monarchy, self-governing societies adopted constitutional limits as a framework for exercising power. As noted above: these limits defined the specific authority of the state; granted basic rights to the people; forbade the state from abusing those rights; and divided government into distinct branches (executive, legislative, and judicial) that balanced one another so no single branch could have unchecked power.

Presidential and Parliamentary Systems

In the United States, a republican form of government means a representative democracy with universal suffrage and constitutional limits. The government includes popularly elected national officers to run the executive branch, a separately elected bicameral legislature, an appointed judicial branch and divided powers among the branches of government and constituent states (see History for a more detailed description). Although the legislature is the first branch of government in its Constitution, the United States is still considered to have a presidential system since the country’s national offices, possessing full authority to govern the executive branch, are separately elected.

A second common system of self-governance is parliamentary democracy. In that system, the popularly elected legislature forms the national government by majority vote and usually selects the head of state. In some states (as in The Netherlands), there is a constitutional monarch who serves as head of state. In both republics and constitutional monarchies, the head of state in a parliamentary system generally acts with limited function, playing mostly a stabilizing or mediating role without decisive power.

In each system, an independent judiciary provides a clear check on the exercise of power. Judges, often appointed by the executive and approved by the legislature, are granted independent authority to interpret and apply the law and to determine whether laws conform with the constitution or set of fundamental laws.

A third system is a mixed presidential-parliamentary system (as in France, the Country Study in this section), in which a separately elected president holds executive powers and may appoint a prime minister, but the legislature retains ultimate power to form and control the national government by majority vote.

A parliamentary system, because it joins legislative and executive powers, has fewer constitutional checks and balances among the branches than presidential or presidential-parliamentary systems. Still, the basic principle of constitutional limits is upheld in that abuse of power is restrained by parliamentary opposition parties, ombudsmen, anti-corruption bodies, independent media and civil society. In each system, an independent judiciary provides a clear check on the exercise of power. Judges, often appointed by the executive and approved by the legislature, are granted independent authority to interpret and apply the law and to determine whether laws conform with the constitution or set of fundamental laws.

Dictatorship

The opposite of self-governance is dictatorship. There, a single ruler, group or political party assumes control over the government without respect for constitutional limits. A dictatorship may have a constitution and even liberal provisions that state the granting of rights to the people, but other provisions override such rights and expand rather than limit the powers of the state. Such constitutions provide ultimate authority to a single leader or dominant party allowing full control over the power of the state. Legislatures and judiciaries may exist and elections are held for appearance's sake, but legislatures have restricted powers, the judicial branch acts without independence and elections are rigged to ensure the perpetuation of dictatorial rule.

It is a measure of democracy whether it overcomes such inherent contradictions within its own constitutions, legal frameworks and traditions to establish more fully the principles of human rights and equality under the law.

Under such regimes, the constitution or laws can often be changed with little or no real input from the people or their representatives. The result is extensive abuse of power. The terrible consequences can be found in the “Not Free” category of Democracy Web’s Country Studies.

Sometimes, dictatorships may reform in response to public unrest or to failing economic policies and allow for greater public representation or input. In such instances, limited reform is often used by the people to press for change and even establishment of self-governance. Dictatorships that do not reform are sometimes faced with mounting popular unrest that rises to a rebellion against tyranny and results in the establishment of self-governance. (For a range of historical and recent examples, see Country Studies of such Free Countries as France in this section, Chile, Philippines, Poland, South Africa and the United States.)

The Rule of Law, Not Men

Constitutional limits are based on the idea that the power of written law, approved by the people or the people’s representatives, is superior to the power of any individual, group or party.

"For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."

Thomas Paine, Common Sense (1776)

In his influential pamphlet Common Sense that helped propel the American Revolution in 1776, Thomas Paine wrote that “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” The separation of powers put in place through a constitution adopted by consent of the governed should ensure that no individual or group is able to dominate the government and create their own law. The constitution and the laws that grow out of it are a framework established by the people that apply to all citizens.

The issue is more complex, of course. There are many instances in which the supremacy of law in democracies has been invoked for wrongful or immoral purposes or to establish majority tyranny. The United States is one example in its practices of slavery and legalized segregation (see History in Majority Rule, Minority Rights). Many European countries, even when developing as democracies, retained colonial empires and granted colonial administrations the power to use force, imprisonment and terror against the inhabitants. Until recently, Western democracies retained criminal and discriminatory laws against various minorities, including the LGBTQ+ community. (Many electoral democracies still have such statutes.)

It is a measure of democracy whether it overcomes such inherent contradictions within its own constitutions, legal frameworks and traditions to establish more fully the principles of human rights and equality under the law. Indeed, these are the principles Thomas Paine was defending in Common Sense when arguing that “the law is King.”

All democracies have examples of individuals who challenged or violated existing law to achieve such higher principles. Among the most famous is Martin Luther King (see his “Letter from Birmingham Jail” in Resources). Ultimately, it is the people who overcome governing contradictions through public action and mobilization, elections, legislative acts, constitutional amendment or, as a last resort, rebellion.

Still, the precept to establish "a government of laws and not of men" ─ as John Adams explicitly wrote into the Massachusetts Constitution quoted above ─ holds an essential place in the framework of democracy. It is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader or the interests of the few.