Constitutional Limitations on Power

Constitutional Limitations on Power

What is a Democracy?

It is important to have a general understanding about the differences between a
democracy
, an 
autocracy
, and an 
oligarchy
.

DEMOCRACY – 
The term democracy is generally defined as 
“
Government by the 
Many
“-
 Power is in the hands of many individuals. The people are the source of power in a nation.

AUTOCRACY – 
A democratic state is very different from an autocracy where only one person holds power like King Louis XIV of France, an absolute monarch, or a dictator like Adolph Hitler or Saddam Hussein.

OLIGARCHY
 – In an oligarchy, only a few people hold power in a nation, e.g. a group of nobles.

THEOCRACY
 – Today we are more familiar with a theocracy when power is in the hands of a 
few religious clerics
 like in Iran or the former Taliban regime in Afghanistan.

At this time, I want to turn your attention to two definitions of democracy:

pure/direct democracy

representative democracy
 
(known as a 
Republic
 
)

In a 
pure democracy
, the people participate in actually governing their communities. They write the laws and administer and enforce laws like in New England town meetings and the Athenian assembly in 500 B.C. We live in a 
Republic
, a 
representative democracy
, where the people elect other individuals known as representatives to govern–make laws and implement and enforce the laws. These elected officials are accountable to the people at election time.

Is a Constitutional Monarchy like Great Britain a democracy?

Yes. Queen Elizabeth II is not an absolute monarch! She has limited powers under the British Constitution. In Great Britain, the people elect individuals known as Members of Parliament (MP’s) to the House of Commons. As a result, the people are the source of power in Great Britain because the House of Commons has the most power. The House of Lords was stripped of its power in the last century and further reforms are being considered. The United States is a republic because there is no monarchy or aristocracy, only the people!

 

Why did the Framers Decide to Establish a Republican Form of Government?

In 
Federalist #10
, James Madison analyzed the 
problems created by factions or interest groups or political parties
 in our society. The framers were concerned that a majority group might dominate our government at the expense of other smaller groups and individual liberties. Madison was concerned, for example, that debtor interests would be promoted over creditors or a majority within the public might pressure their representatives to equalize the distribution of property at the expense of property owners.

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The cure for the mischief of faction
 – 
the best way to minimize the influence of a majority interest group was to establish a representative democracy, a republic.

If you had the people elect their representative, that public official could consider both individual constituent concerns and all the interest groups’ concerns as well before making a decision regarding a bill. The lobbyists from various organizations representing labor, business, professionals, farmers, gun owners, advocates against abortion would have to compete for the representative’s attention – it would dilute the power of any one interest group.

Madison believed that the representative would filter all this information and be much more objective in making decisions that would indeed promote the ” public good” rather than just a single majority interest group.

In a pure democracy when the people governed, it was easier for a majority group to find a common interest and promote it over the interests of the minority groups or the public good.

In a 
large federal republic
 that extended over a large area, Madison believed there would be more people, thus more interests, and as a result, it would be more difficult for a majority to form within the public. Also, one group might be able to dominate a representative(s) in one state, but not in other states. For example, the farmers might have a strong influence on Congressmen from agriculture states, but not too much influence on Congressmen who represent the inner cities. By having representatives and power given to both national and state governments, it would make it much more difficult for a majority interest to dominate the entire government.

The U.S. Constitution

What Limits were Placed on the Power of the National Government?

“
In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself”
 (Madison, 
Federalist 
#51, A-5).

Our federal republic is a 
Constitutional democracy
 because it gets its power from a 
written constitution
 that was approved by the people. When you look at Article I-VII of the U.S. Constitution, you can see the powers of the Congress, President, and Federal Courts listed there. You will also find that Congress and the states are denied certain powers which I will discuss in a later lesson on federalism. For the moment, it is only important that you appreciate that our federal republic receives its power from the people as expressed in our national Constitution.

During this part of the lesson, please keep in mind that the framers wanted to prevent tyranny and to reduce the power and influence of a particular group that might use their power to harm the interests of minority groups in our society or our individual liberties. They wanted to create a stronger and more effective national government that could promote the general welfare, protect national security, and maintain order, but at the same time they recognized the tantalizing appeal of power and man’s need to consolidate his own power to promote his own interests.

Limits were placed not only on our representatives, but on the people themselves.

We often think only that our leaders will repress our liberties but fail to recognize that some of our own demands for action may deprive other people of their rights and freedoms. As a result, the framers of our Constitution placed limits on the power of the Congress, President, and Federal Courts.

The limits on power are the following:

FREE AND FAIR ELECTIONS 
— the people. A 
free and fair election
 is a defining feature of a democracy.

At the very outset, if the people are going to retain the power in a nation, they have to hold their representatives accountable at election time. The voters must be permitted to choose their own representatives without force. I often tell my students that in our country we can exercise our right to vote or not to vote. We will not be fined or imprisoned or face a worse fate.

Elections must also be fair in that opposing candidates can run and get media coverage and that ballots are accurately counted and not destroyed or lost (there were allegations in the 2000 Presidential election that ballot boxes were discovered in a closet). In general, corruption must be kept at a minimum to ensure a fair election.

You may remember that in the 2005 Ukrainian Presidential election, the government used invisible ink on some of the ballots. The voter went to the polls, marked his ballot, and when the ink dried, his X was gone! Viktor Yushchenko was sworn in as president of Ukraine in 2005 after massive protests over his loss in a fraud-plagued election plunged the Ukraine into political crisis. Constitutional Limitations on Power

No wonder the government s candidate won on the first round.

In 
Federalist #51
, James Madison wrote:

{A} dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Madison recognized that you would need more than the ability of the people to throw the rascals out at election time to prevent the potential for tyranny. You would need to take extra precautions and structure the government in such a way as to minimize the potential for the abuse of power by not only our elected officials, but the people themselves.

SEPARATION OF POWERS — BALANCE THE POWER —
 The United States Constitution gives power to three (3) separate, equal,and politically independent branches of government.

The 
Executive Branch
 carries out and enforces the law.

The 
Legislative Branch
 makes or writes law.

The 
Judiciary Branch
 interprets the law and resolves legal disputes.

Each branch of our national government is equal in power, has different responsibilities, and is accountable to different groups of people.

Under the 
Articles of Confederation
, our national government had only 
one branch
, the Confederation Congress, which had principally legislative authority. There was no Executive Branch to implement or enforce laws passed by Congress or national courts to resolve legal disputes that involved national laws, several states, and citizens of different states (the federal courts provided a neutral forum).

When the framers returned to the idea of separation of powers, they were heavily influenced by their own personal experience, and the work of the 18th century Frenchman, Comte Charles Montesquieu.

In his book, 
Spirit of the Laws
 
(1748), Montesquieu strongly advocated balancing power. He writes that tyranny usually results when power is concentrated in a single government body. He was a great admirer of the British system of government because power was defused between officials in three branches of government: the Monarch, Parliament, and Courts.

Montesquieu believed that no particular class of British society (royalty, aristocracy, commoners) would dominate the government if each branch was accountable to different groups of people. During that time, the King represented the interests of the royal family; and the bicameral Parliament composed of the House of Lords and the House of Commons promoted the interests of the nobility and the men of property respectively.

In our country,our representatives are accountable to different groups of people as well. Before a President signs a bill into law, he considers whether it promotes the best interests of the entire nation; a United States Senator will see how a bill would impact his state; and a Congressman will consider whether a bill will improve the lives of people residing in his Congressional district. Our federal courts have judges who are appointed for life and are insulated from public pressure.

James Madison wrote in 
Federalist #51
 
that:

{I}t is of great importance in a republic not only to guard against the society against oppression of its rulers, but to guard one part of society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure
.”

The framers believed that by giving each branch different responsibilities and holding them accountable to different constituencies, that it would make it more difficult for a majority to dominate our national government. They did not want executive, legislative, and judicial power put in the same hands.

James Madison also writes in 
Federalist #47
 
that:

“
the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self—appointed, or elective, may justly be pronounced the definition of tyranny.”. “{T}he preservation of liberty requires that the three great departments of power should be separate and distinct.”

CHECKS AND BALANCES SYSTEM — SHARED POWERS —
 each branch has authority over the other branches. Each branch can limit the power of the other branches by sharing power.

The framers of the U.S. Constitution, particularly James Madison, did not think that just by giving three branches different responsibilities by itself would be enough to prevent the concentration of power by their leaders or to prevent the majority of the public from pressuring their representatives to make laws that might harm minority groups interests (e.g. property owners).

To prevent government officials from pooling their authority together in order to consolidate power, the framers gave officials in each branch the ability to limit the power of the other branches. They did this by having the public officials 
share certain responsibilities.

For example, the President participates in the legislative process by proposing a federal budget and signing or vetoing bills; and Congress ultimately can check the President if they disapprove of his military missions by denying funding; and the U.S. Senate can approve or reject Presidential appointments and treaties.

The general idea was that not only would public officials be busy carrying out their own responsibilities, but they would make sure that other public officials in another branch were not abusing their power. If they were busy playing the role of 
watchdog
, they would be less tempted to join with other branches to promote a particular interest(s) and consolidate power.

The framers deliberately built in inefficiency into our political system. We call it 
Gridlock
. We often complain that our representatives can never act quickly enough to address our nation s problems Constitutional Limitations on Power.

Politics does become personal sometimes and tensions are often created by differing ideologies and party strife, but do not forget that our forcing the branches to share power also exacerbates the problem of governing.

The framers put in these structural barriers (
checks
) in place to ensure that not any one branch becomes too powerful. They wanted the 
President and Congress to compromise 
and find solutions to public problems that promoted the 
public good
 , and not just one group or coalition of groups interests as noted earlier in our lesson. This is why getting bills through Congress and signed into law by the President can sometimes be a very SLOW, SLOW process. However, rest assured that when our national interests are threatened, Congress and the President can and will act swiftly, and this too can sometimes present Constitutional problems!

JUDICIAL REVIEW —The U.S. Supreme Court 
can declare acts (bills) of Congress signed into law by the President unconstitutional—make the laws void and unenforceable.

Marbury v. Madison 
(1803) is probably the most important case ever decided by the U.S. Supreme Court. Although the case involved the question of whether John Adams judicial nominees were entitled to their federal judgeships since their commissions were signed, but not delivered to them at the end of Adams Administration, the Court took the opportunity to assert its independence and to check the power of Congress and the President.

The case raised two critical questions :

Who will be the 
Guardian
 of the U.S. Constitution? The Executive, Legislature, or Judiciary?

Does the U.S. Supreme Court have the power to declare legislation passed by Congress and signed into law by the President unconstitutional?

The Court held that since judges have the responsibility to interpret law and the U.S. Constitution is fundamental law, it is within their purview to determine its meaning and protect the people s will reflected in the document. It is 
not
 the responsibility of the Congress or the President to interpret law.

If Congress and the President produce laws that conflict with the U.S. Constitution, it is the duty of the Court to strike them down as unenforceable. The Court must prefer the U.S. Constitution that is supreme law of the land over ordinary statutes passed by Congress and signed into law by the President (
National Archives, National History Day, and USA Freedom Corps
).

As a result of its decision, we can challenge a federal law in federal court if it infringes on our individual liberties, and hope that ultimately the U.S. Supreme Court will declare it unconstitutional. The power of judicial review was a serendipitous check on the Congress and the President. There was nothing written in the U.S. Constitution that gave the U.S. Supreme Court this power.

The Court took it upon itself to act as an intermediary between the people and the legislature. Chief Justice John Marshall was strongly influenced by Alexander Hamilton, author of 
Federalist
# 78
 
, who believed that if the Judicial Branch did not check the Congress that it would pass laws all day long that were contrary to the meaning of the U.S. Constitution and undermine the will of the people expressed in the document. Hamilton said that if the people want to change the U.S. Constitution, they will have to go through the Constitutional amendment process!

 United Kingdom’s Supreme Court

In the United Kingdom, the Guardian of the British Constitution is the Parliament (House of Commons). If someone challenges a law passed by Parliament as conflicting with the British Constitution, new elections are called and it is up to the people to decide by voting out or re-electing their representatives.

In 2009, the United Kingdom formally established a Supreme Court with 
nonbinding power of judicial review
.  In 2005, Parliament passed a Constitutional Reform Act that included removing the highest appellate court in the land from the House of Lords (a committee of “Law Lords”) and creating an independent court modeled after the United States Supreme Court. They were incorporating the idea of separation of powers and an independent judiciary (
The Supreme Court 2009
)
!

The United Kingdom Supreme Court has ruled on several cases in recent years and found certain Parliamentary acts unconstitutional.  In 2019, the Court held that Prime Minister Boris Johnson’s effort to suspend Parliament for a month was unconstitutional.  Members of the House of Commons returned immediately to London and reopened the House.  Since this Court’s opinion is not binding, it rests ultimately with the Parliamentarians whether they agree with its decision regarding the constitutionality of a law.

Read 
Marbury v. Madison
 (1803) at 
https://www.law.cornell.edu/supremecourt/text/5/137
.

To hear a discussion on the importance of Marbury v. Madison (1803)
, please watch 
C-span’s presentation of Landmark decisions.

Also, 
you may watch a film
 on this case produced by the Judicial Conference of the United States (1977).

FEDERALISM – The U.S. Constitution
divides power between a national government and state governments. Both the national government and state governments have authority over the people and are accountable to the people. (We will discuss this final limit that was placed on the power of the national government in our next lesson on American Federalism.) Constitutional Limitations on Power