CONSTITUTIONAL DEMOCRACY & OTHER POLITICAL REGIMES
(Continued)
5. Different Ways in which a Constitution May Limit Political Authority:
In a constitutional system of government, the Constitution may limit the power of government in two different ways. The Constitution may limit governmental power by (1) specification of procedures and prohibitions and/or (2) provision for a system of divided and balanced political authority.
a. Specification of Procedures and Prohibitions:
Procedural Limitations--Specification of Procedures. The Constitution prescribes certain procedures that must be followed by public officeholders and institutions in making and enforcing the authoritative decisions of government. This limits the alternative ways in which the government may exercise its formal-legal powers; and to limit the government's alternatives, is to limit its discretionary authority. The government's discretionary authority is circumscribed, or restricted, by requiring its officers, agencies, and institutions to follow constitutionally prescribed procedures in taking official action. The government cannot legally do anything it pleases in any manner it pleases. It must follow the procedures specified in the Constitution.
In the U.S.A., for example, the national government, in taking official action against the individual citizen, must follow the procedures spelled out in the U.S. Constitution. Among such procedures mandated by the Federal Constitution are the requirements that (1) before a person may be made to stand trial for a federal crime, a grand jury, by indictment or presentment, must officially accuse him of having committed the crime [Fifth Amendment], (2) the government must follow due process of law in depriving a person of life, liberty, or property [Fifth Amendment], (3) just compensation must be made for private property taken for a public purpose [Fifth Amendment], and (4) in all criminal prosecutions, the accused must (a) be provided a speedy and public trial by an impartial jury, (b) be informed of the nature and cause of the accusation, (c) be confronted by witnesses against him, (d) have compulsory process for obtaining witnesses in his favor, and (e) have the assistance of counsel for his defense, provided the accused does not willingly and knowingly waive the foregoing rights to a fair trial [Sixth Amendment].
In summary, constitutional imposition of procedural limitations on the exercise of political authority means that, while the government possesses the authority to take action on a given matter, it must do so according to a constitutionally prescribed pattern or sequence. If the action taken by the government is to be legitimate, the government must, in the course of that action, observe and comply with all the constitutional requirements and do so in the constitutionally prescribed order.
Substantive Limitations--Specification of Prohibitions. In addition to restricting political authority through specification of procedures that the government must observe when making and enforcing decisions, a constitution may limit government power by enumerating certain types of decisions that the government is prohibited altogether from making and enforcing. In other words, governmental authority is circumscribed by constitutional prohibitions withholding from government particular kinds of decisionmaking and actiontaking authority. There are some things that the government cannot legally do at all, regardless of the procedure followed. The First Amendment to the U.S. Constitution, for example, denies government the authority to make any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of giievances."
b. Divided and Balanced Political Authority:
Balanced Government and its Objective. In a political regime characterized by divided and balanced political authority, the Constitution limits governmental power by providing for a system of balanced government, or checks and balances. That is, the Constitution (1) creates several principal organs, or institutions, of government that are separate from and largely independent of each other, (2) divides political authority and distributes it among the principal governmental organs, and (3) gives to each organ the motive as well as the authority to oppose and courteract the other organs. Hence, the organs of government exercise a series of checks and restraints on each other, preventing any one organ from exceeding its powers, encroaching on those of the other organs, and upsetting the equilibrium of power in the government. By opposing and blocking one another, the principal organs of government prevent any one organ from usurping the authority of the other organs and gathering enough power in its own hands to dominate the entire government. In other words, the Constitution provides for a governmental structure designed to limit political authority by maintaining a balance of political power in the government as a whole, preventing any one power center in the government from dominating the others and exercising unchecked, overriding political power.
Thus, the objective of constitutionally providing for a system of divided and balanced political authority is to prevent concentration of political power in a single power center. Operation of a system of balanced government is expected to (1) prevent any one institution or office of government from dominating the entire government all and its parts and (2) thereby make it impossible or extremely difficult for any one person, group, or faction--whether supported by a majority or minority--to dominate the entire government and use that position of dominance to accumulate and exercise unlimited power over the society and its members. By maintaining a balance of power in the government and preventing domination of the entire government by a single governmental organ, the system makes it very very difficult, if not impossible, for any one political organization --even one consisting of a majority of the voters--to (1) win complete control of the government, as the result of victory in a single election, (2) take complete charge of the entire nation, or political society, (3) exercise the authority of government entirely or almost entirely in the service of a particular religious sect, political ideology, or set of narrow interests, and (4) ignore and ride roughshod over the rights and vital interests of all other segments of the population.
Balanced Government--A Summary. In a political society with a functioning system of balanced government, the Constitution limits the power of government by dividing political authority and distributing it among several separate and largely independent institutions of government. Authority is distributed in such manner as to ensure that these governmental institutions will (1) check and restrain one another and (2) prevent any one of them from (a) usurping the authority of the others, (b) concentrating all governmental power in its own hands, (c) becoming the dominant power center in the government, and (d) exercising unchecked political power. In other words, governmental power is limited by operation of a constitutional system which maintains an equilibrium, or balance, of power in the government.
This constitutional arrangement makes it extremely difficult for a single political organiza- tion, driven by adherence to religious dogma or political ideology or by commitment to a set of narrow interests, to obtain complete control of the government and use its position of political ascendancy to exercise unbridled political power over the society at large, governing in an overbearing and tyrannical fashion.
c. Limited Government under the United States Constitution:
The U.S. Constitution limits governmental authority in both ways--by specifying procedures and prohibitions that the government must observe and by providing for a system of divided and balanced political authority. The Federal Constitution requires the U.S. government to follow prescribed procedures, prohibits altogether certain governmental decisions and actions, and allocates authority among the major government offices and institutions so as to ensure maintenance of a balance of political power among them.