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 American founders were deeply skeptical of direct popular rule. Repre-sentative democracy, they argued, was far superior because the buffer it created between the people and state policy allowed for reflection, reasoned debate, and compromise between opposing interests.
The original purpose of establishing formal or constitutional limits on government was to check the arbitrary actions of hereditary monarchs or rulers who abused their power, imposed unwanted taxes, or launched unpopular wars. Using written agreements like the Magna Carta or unwritten agreements, nobles with substantial property forced the principle of restraint on the rule of European monarchs by establishing consultative or representative institutions. Over centuries, through popular revolutions or the evolution of more representative institutions like parliaments, there developed greater checks on executive power and a separation of government into independent branches exercising distinct powers of the state. Rulers could no longer act unilaterally to enact decrees against the will of the people and instead had to gain approval from parliaments, having increasing popular representation, for passing laws and obey the judgments of courts, established to interpret the law (see History).
Self-Governance and Constitutional Limits
The modern experiment of popular self-governance, which began in the late 18th century in the United States, established the legitimacy of state power through the people's will rather than on a monarch or the interests of the nobility and gentry. The people, formerly only subjects of the crown having few rights, became citizens with full and equal rights, regardless of class. In turn, 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 it from violating basic rights, and divided government into distinct branches that would check and balance one another so that no single branch could amass too much power. Although the idea of self-government in the US originally applied only to white males with sufficient property — and coexisted with the heinous practice of slavery — over time, the concept expanded to all persons. Today, self-governance is universally understood to mean a government that is, as Abraham Lincoln asserted, “of the people, by the people, and for 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 proved impractical and there are few examples of it in history. Even ancient Athens, in which all major decisions were determined by a democratic assembly of all its male citizens, relied on elected officials for the daily functioning of the city-state (see History). In the U.S., town hall meetings, where basic policies of small municipalities are adopted by vote of those present, 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 conducted their affairs 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, 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 transient popular impulses or abuses of power. Today, democracy is generally understood as a system of freely elected representative institutions with constitutional limits. In the U.S., that meant a bi-cameral legislature in which popular and territorial interests would be balanced, and divided powers among branches of government and constituent states. (See also "Consent of the Governed," and "Majority Rule, Minority Rights.")
This understanding of representative democracy 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 a separately elected president holds many or all executive powers. The parliamentary system is the most common among the world's electoral democracies. Since the executive branch is directly appointed by the legislative branch in parliamentary systems, in effect combining these powers, it has fewer constitutional checks and balances among the branches than presidential or mixed systems. However, the basic principle of limited government is upheld and abuse of power (including the “tyranny of the majority”) is restrained through parliamentary opposition parties as well as by tradition, the rule of law, ombudsmen, independent news media, and in some cases a constitutional monarchy. Constitutional monarchs today are typically limited to symbolic functions, but they often retain formal power of establishing the government and thus can play a stabilizing or mediating role in times of political crisis and protect against abuse of power.
The opposite, indeed the antithesis, of popular self-governance and constitutional limits on power is dictatorship, in which a single ruler or group assumes control over the government without constitutional limits. A dictatorship may have a constitution, but in practice its provisions serve to expand rather than limit the powers of the state and grants most if not all authority over the state’s powers to the leader or a dominant group. 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 of which can be found in the Not Free category of the Country Studies of each section). Occasionally, dictatorships adopt liberal constitutional provisions or hold rigged “elections” to powerless legislative bodies for appearance's sake or to placate international opinion. Some constitutions, such as those of communist “people’s democracies,” pledge full adherence to basic principles of human rights or self-governance, but include language that gives a higher authority — a leader or a ruling party — the absolute power to override those principles in the name of state security or the ruling party’s ideology. Nevertheless, such constitutional provisions sometimes offer citizens some possibilities for organizing opposition to their regimes and to effect change (see, for example, the Country Studies of Chile, Poland, and South Africa, among others).
The Rule of Law, Not Men
Constitutional limits are based on the idea that the power of the law — rules adopted by the people's representatives — is superior to the power of any individual or group. In his influential pamphlet Common Sense, the U.S. revolutionary 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 established by means of a constitution adopted by the consent of the governed (see Section 1), 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 theoretically apply to all citizens.
Of course, in a number of instances in U.S. history (and that of other electoral democracies), the supremacy of law has been invoked for wrongful or immoral purposes. Certainly, the provisions protecting slavery in the U.S. Constitution (and legislative acts enforcing it or further extending its reach) directly contradicted the Declaration of Independence and what most Americans today believe is country’s foundational principle that all persons are created equal. The decisions in Dred Scott (1857) and Plessy v. Ferguson (1896), in which the U.S. Supreme Court upheld the practices of slavery and racial segregation, respectively, are notorious examples of the rule of law gone terribly wrong even when practiced under a constitutional separation of powers. Ultimately it is the people who must overcome such contradictions through legislative action, electoral change, public protests, or, as a last resort, revolution. In the case of abolishing slavery in the U.S., a civil war, had to be fought and won.
All democracies have examples of individuals who challenged existing law to achieve a higher moral purpose. Still, the basic precept that John Adams explicitly built into the Massachusetts constitution — to establish "a government of laws and not of men" — 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.