Constitutional Limits on Government: History


The Magna Carta

Modern constitutional limits on government are commonly traced to the Magna Carta of England, also known as Magna Carta Libertatum (or the Great Charter of Liberties). Signed in 1215 by King John, it is considered one of the most important foundation stones of constitutionalism. The agreement followed a rebellion of feudal barons against King John's ineffectual rule and his attempts to impose his authority and additional taxes by force. The nobility obliged King John to limit his powers through a formal written agreement, establishing the principle 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. Magna Carta’s most important restriction was the king’s obligation to seek the consent of the nobility, the clergy, the gentry, and townsmen before imposing taxes. . .

The Magna Carta’s most important restriction was the king's obligation to seek the consent of the nobility, the clergy, the gentry, and townsmen before imposing taxes (and by extension before raising an army for war). In fact, the Magna Carta was not the original limitation of the king’s powers: it is an expansion of an original Charter of Liberties adopted in 1100 by Henry I. However, it was these expanded provisions that laid the basis for further limits on the monarch’s powers. Out of the adoption of the Magna Carta evolved an early incarnation of England’s modern Parliament, which met first under Edward I in 1295. This first parliament included major noblemen, leaders of the Catholic Church, and representatives of the counties and towns. The territorial representatives (common tax-payers) were later separated in 1341 from an upper House of Lords (that comprised only richer noblemen and high clergy) to form the lower and initially less powerful House of Commons. Notably, each district represented in the House of Commons could set its own rules for electing its members. Eventually, the Commons 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. As a result of inflation, this provision resulted in a gradual expansion of the right to vote to smaller property owners. (Some US states adopted the same 40 shilling requirement in their initial constitutions.)

The British Model

It is a paradox that the principle of constitutional limits evolved in a country, England, where no formal constitution was ever adopted. Today, the United Kingdom of Great Britain and Northern Ireland, known simply as the UK, continues to be governed according to an accumulation of parliamentary law, treaty, 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 has become a ceremonial head of state who only formally establishes the government based on the leading party in parliament. The House of Lords now consists largely of members appointed for life by the monarch on the recommendation of the prime minister, yet some high-ranking clergy and hereditary peers remain. The House of Lords can no longer prevent final enactment of legislation, but it retains oversight and persuasive powers and recently has asserted its rights to return legislation for further deliberation. 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.

The US Model

As already noted in Consent of the Governed and Free Elections, the framers of the US Constitution were concerned with the dangers of arbitrary government and an overbearing executive. Drawing their ideas from republican Rome, the writings of John Locke, and the Baron de Montesquieu's The Spirit of Laws, the framers crafted a model of government based on the principle of separation of powers in which executive, legislative, and judicial branches are divided and their powers specified so that no one branch, and especially not the executive, can dominate the others.

The executive branch is headed by a president who, with the vice president, holds the only nationally elected office and is thus the representative of all the people. The president's chief responsibility, however, 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 is itself not absolute. The president is the commander-in-chief of the armed forces, but only Congress may formally declare or authorize war. (In recent decades presidents have gone around this provision by declaring the authority to engage in emergency military actions under “the War Powers Act,” but ultimately Congress retains its “power of the purse” and can limit or end spending for any military endeavor.) The president appoints executive officers, including ambassadors, as well as federal judges, but the Senate must advise and consent to them. . . [T]he framers crafted a model of government based on the principle of separation of powers in which executive, legislative, and judicial branches are divided and their powers specified so that no one branch, and especially not the executive, can dominate the others.

The legislature is divided into two chambers. 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 (so that Wyoming, the smallest by population, is equal 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, is designed to temper changing popular opinion and serve as a bulwark against dominance by larger states. Legislation regarding revenue and expenditures originates in the House; the Senate may amend and must approve all legislation. It also holds “advise and consent” power to approve not only presidential appointments but also international treaties. The federal judiciary is protected from both elected branches of government through lifetime appointment. Federal judges may be removed only by impeachment (equivalent to an indictment) for “high crimes and misdemeanors” by the House of Representatives and then by conviction in a trial of the Senate. The House and Senate possess equivalent power to impeach and convict Presidents. The US Supreme Court is the final court of appeal, and its interpretation of laws and the Constitution must be respected by the states and other branches of government as “the law of the land.”

Amendments to the Constitution, especially the first 10, known as the Bill of Rights, and the post–Civil War 13th, 14th, and 15th Amendments, expanded the federal government’s reach to protect all citizens’ rights. (The latter three amendments abolished slavery, ensured that the states upheld federally protected rights, and conferred citizenship and voting rights on former slaves.) At the same time, the tenth amendment limits the federal government by establishing that individual states are granted all governmental powers not enumerated for the federal government in the Constitution, meaning they have autonomy with respect to local affairs such as education, police, and other community services. States have their own constitutions that are generally organized under similar principles as the federal charter, with three branches of government: an executive (governor), a legislature, and a state court system.

The country's multilayered system of constitutional government is often blamed for a lack of timely and 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 through the Senate and the high bar for changing the constitution that requires three-fourths of the states to approve amendments. This debate has resumed in recent decades as many serious issues have remained unresolved as a result of divided government and political gridlock. Still, many scholars consider the layered constitutional limits in the US system to be a key reason for America's stability and success as a democracy.

European Models

While most 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 non-hereditary 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 strengthening the state by extending political rights beyond the nobility and forming a stable parliamentary monarchy. Its autocratic neighbors, Austria, Russia, and Germany, viewed the reformed state as a threat and occupied and partitioned Polish territory for the next 125 years. Poland regained independence only after World War I in 1918 (see Country Study of Poland).

Today, many European countries (such as Spain, Netherlands, Norway, and Sweden) retain a formal constitutional monarchy with some type of parliamentary system, although, unlike the United Kingdom, 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 whereby the president acts as head of state and plays a leading role in setting national policies, particularly foreign and security policies (see Country Study of France in this section). Among other major European countries, Poland and the Czech Republic, among others, have adopted a mixed presidential-parliamentary system to France, while in others, like Germany and Italy, presidents are elected by parliaments and have more limited roles.

In both parliamentary and mixed-presidential systems, there are constitutional limits established through a separation of powers, including an independent judiciary and systems of rule of law and the protection of human rights within national constitutions. Basic human rights are further protected today through ratification of the European Convention on Human Rights, a requirement of membership in the Council of Europe which reiterates and expands on U.N. international human rights covenants. In some countries, like Italy, Switzerland, and Sweden, regional systems have been adopted in which basic autonomy of local governance and minority rights are also respected.

The Rise of Dictatorship

The 19th-century historian Lord Acton once wrote, "Power tends to corrupt; absolute power corrupts absolutely." Such was the case in many countries during much of the 20th century when democracy's progress was challenged by the rise of military juntas, nationalist dictatorships, and autocracy, as well as new types of dictatorship, such as apartheid in South Africa, theocracy in Iran, and Fascist and Communist regimes. These latter regimes, which were based on specific political ideologies, abused power so completely that historical examples of autocracy appeared liberal by comparison. Certainly the death toll of Fascist and Communist regimes was without precedent. 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 (two-thirds of Europe's prewar Jewish population). There is considerable debate about the number of people killed under Communist regimes, but reasonable estimates surpass 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 that was caused by deliberate state policies. Both types of regimes claimed legitimacy through constitutions. Communist variants included lengthy assertions of "people's rights," but in practice there were no actual protections against the abuse of state power since ultimate authority was granted to the ruling communist party. A Polish democratic theorist, Jakub Karpiński, 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.

The Expansion of Democracy and its Ebb

The adoption of democracy and basic constitutional limits of power has increased steadily since the defeat of the Axis Powers and their affiliated states in World War II. Indeed, under the initial oversight of the US and other victorious Allied powers, the war’s militaristic instigators — Germany, Italy and Japan — all became established democracies with clear constitutional limits on the system of governance. In 1948, Israel emerged as a stable democracy in the Middle East, while India came out from under British colonial rule to establish the world’s largest democracy. In 1974-75, popular movements for democracy in Spain, Portugal and Greece succeeded in overthrowing military dictatorships. Decolonization in the 1950s and 1960s initially saw more dictatorships than democratic governments replace colonial administration in many countries of Asia and Africa. Starting in the late 1970s, however, “people power” and other reform movements brought about a progressive adoption of democracy and constitutional systems protecting human rights in an increasing number of African and Asian countries as well as in most countries of Latin America. The Soviet Union retained its totalitarian system after World War II and expanded its military and political control over a bloc of eastern European countries that the Red Army had occupied during the war. The Soviet bloc (formalized in the Warsaw Pact) posed a challenge to the Western alliance of democratic countries during the Cold War, a conflict that lasted 40 years. Ultimately, however, communism was overthrown by a series of popular revolutions, first in the Eastern bloc countries in 1989 and then in the Soviet Union itself from 1989 to 1991. The USSR was formally dissolved in December 1991.

Since 2005, the trend towards democracy appears to have ebbed. The 2017 Survey of Freedom in the World by Freedom House reports the eleventh straight year in which scores in civil liberties and political rights declined in more countries than they increased. Indeed, a majority of the world’s people still live in countries categorized as “not free” (35 percent) or “partly free” (25 percent), that is in systems where constitutional limits are either not respected at all or only partially so.

A brief review of regions makes clear the continuing lack of constitutional limits and democratic freedoms. Many countries emerging from the former Soviet Union replaced communist dictatorship with authoritarian rule, most notably the Russian Federation (see also country studies of Azerbaijan, Kazakhstan, and, in this section, Uzbekistan). Since the death of its original fanatical and murderous leader, Mao Zedong, the People’s Republic of China has adopted a hybrid communist political system with capitalist economic features but still has no real constitutional limits on state power and no protections of human rights (see Country Studies of China in Freedom of Expression and Freedom of Association). Most Middle Eastern countries retain monarchies or authoritarian governments and continue to resist constitutional limits on power and democratic change (see Country Studies of Morocco, Jordan, Saudi Arabia, and Syria), with some notable exceptions (see Country Studies of Israel, established in 1948, and Tunisia). In Latin America, Cuba (see Country Study in Economic Freedom) remains the most flagrant violator of human rights, while such “partly free” countries as Bolivia, Venezuela, and Guatemala reflect the difficult history on the continent of South America in establishing stable democratic systems with constitutional protections against abuse of power (see, respectively, the Country Studies in Consent of the Governed, Free Elections, and Constitutional Limits).

Still, even with the ebbing in democratic advances, the change since the end of World War II, when there were only about two dozen stable democracies, is impressive. Overall, from 1973, when Freedom House began its Survey of Freedom in the World, to 2005, the world saw a substantial rise in the number of “free countries” (from 40 to 90). Although countries designated “free” often continue to have many ongoing debates and difficulties regarding fundamental issues of rule of law, human rights, respect for minorities, and even basic governance, such countries have generally respected constitutional protections of human rights, established limits on the exercise of power, and political systems with sufficiently free and fair elections to allow non-violent changes in power between competing parties or blocs and peaceful resolutions of political and social conflicts through constitutional means.