Now, let me note from the outset that one could write quite a bit (indeed, a book or two, I reckon) on this subject, so I hardly consider the following the definitive last word on the subject, but these are some thoughts that have been percolating in my head for a while that were brought to the fore as a result of a WSJ editorial yesterday and Doug Mataconis’ post on that subject (and the comment thread thereof).
At a minimum I think it is worth considering what “unlimited” government might mean, as well as what a purely majoritarian democracy would look like, and then to note specifically how our system is limited and in the ways in which the nature of that limitation is unclear (and therefore contested).
The bottom line, perhaps, is that all governments are limited in some capacity. Any division of governing power is a limitation on that power. A simple illustration: if I am a single person deciding what to do for dinner, I am constrained only by my own will. However, if I am part of a couple, negotiations must commence with my significant other. Expand that to a family of five or to two or more couples and the limitations on action become obvious. Yes, I understand that this isn’t an example of governing, but it illustrates that as actors who have claims to power are added to a deliberation, the more limited my specific part of that process becomes.
The only truly unlimited government would be the type of tyranny that Montesquieu warned about and that many of the framers of the US Constitution feared: the type of government where all the powers to make laws, execute the laws, and pass judgment over those laws is vested in a single individual. If a given person can decide at any given moment what the law is, how to apply it, and to whom it applies, despotism exists and the power to arbitrarily apply that power is unlimited. Now, such extreme despotism is relatively rare in the modern era, although places like Robert Mugabe’s Zimbabwe come to mind. Certainly, too, there has been a lengthy set of examples of authoritarian regimes of various stripes where high levels of power concentration existed, and therefore nearly unlimited and unconstrained government was in place.
Of course, when we start considering the issue of limitations on government once we starting talking about representative democracy, regardless of the example, we hit the realm of limited government and the question then becomes what form and scope such limitations take.
One of the ongoing claims about the US that is made, usually taking the form of the “republic, not a democracy” claim (for more on that see here, here, here, and here for example) is that we do not have a system wherein the majority gets whatever it wants (which is true—more on that in a minute). However, it is rather important to note that really, by definition, there is no modern democratic system that is a pure majoritarian system for the simple reason that all democracies guarantee minority rights (e.g., speech, association, religion, press, etc.) and all democracies have constitutions and courts and the the like which constrain and limit what the government can do (the United States is not unique in this regard, even if the exact manifestations and applications of these issues vary from place to place).
The closest, in practice rather than theory, to majoritarian democracy would be the United Kingdom due to a series of issues which include the following: 1) it is a parliamentary system, 2) it effectively has a unicameral legislature,* 3) it has an electoral system that almost always produces a single majority party,** 4) it lacks a written constitution, 5) it has weak judicial review, and 6) it is a unitary system (i.e., not federal).
All of this means that the majority party controls the legislature (the House of Commons) and the executive (i.e., to chose the Prime Minister and the cabinet) and technically all laws passed are automatically constitutional (although there are some grounds, though quite limited, to challenge some laws). Also, since most governing power is concentrated in parliament,*** a majority party therefore can have substantial, deep, and lasting policy effects. However, even in such a system the majority does not get everything it wants (because, if anything, majorities form and fall around given issues, rather than being some permanent entity).
The US is clearly different than the UK case. While we have the same basic electoral system, which helps produce our two large parties, we are quite different on all the other dimensions mentions: we have separation of legislative and executive powers, we have strong bicameralism (wherein laws must pass both chambers in identical form), we have a written constitution with strong judicial review, and we have a federal system. And when it comes to majorities and their will, the Senate by itself thwarts that issue in a host of ways.
As such before we start talking about what is in the Constitution, the division of power in our system should be clear: division between federal and state (50 of them!) governments, division between Congress and president, division between House and Senate, and a great deal of power in the hands of the courts. This is where we see the heart of the notion of limited government. Our government can seldom act quickly, to say the least. This is clearly a bit more complicated than, to get back to my previous example, several couples deciding where to go to dinner.
We have to understand this basic institutional environment before we start talking about limitations from the Constitution itself. We have to understand and acknowledge that what we have here is a arena constructed within which to contend over the meaning of the documents. When the Constitution limits Congress to only dealing with interstate commerce, it does not define what that means. So, on the one hand, this is a clear limitation on government, but we really are not told what that limitation means. Yes, we can try to discern what was in the mind of the Framers (ultimately a tricky, if not impossible, task) or we can acknowledge that the meaning of the phrase is one that has to be worked out within and between the House and Senate, and then between the Congress and the President, and then between the collective decisions of the Congress and the President (i.e., law passed then signed) and the courts (up and until, possibly, the Supreme Court).
As such, to answer Doug’s question from his post (as well as the WSJ‘s): “What Can’t The Government Mandate?” the answer is: the government cannot mandate something that cannot make it through the above gauntlet. Practical politics as filtered through our political institutions is, ultimately, what determines what the government can, and cannot, mandate. As such, we do not yet know, for certain, if the federal government can mandate the purchase of health insurance, as the gauntlet has not yet been completed. The likelihood that, to get back to the WSJ column, Congress will be mandating health club memberships or coffee for employees, is rather slim; indeed, it is nonexistent.
Indeed, let’s consider the obvious illustration that proves point: the PPACA and the individual mandate. To pass the legislation it took decades of interest and politics to come to a very specific political circumstance (i.e., unified government combined with a large Democratic majority in the House and 60 votes in the Senate—which was almost derailed by the death of Ted Kennedy) and still the fate of the law is in the hands of the Supreme Court. Regardless of outcomes, our system of constraints and its interaction with practical politics should be clear.
Back to the theoretical discussion: yes, the constitution constrains and limits the US government, but it does so far more by the nature of the institutional design than it does by the words on the page. Consider, as I noted in the comments of Doug’s post, the clear admonition in the First Amendment: “Congress shall make no law…abridging freedom of speech.” If that statement, on paper, was all that was needed to limit government, then one would, in fact, be allowed to yell “fire” in a crowded theater and to claim in commercials that drinking Sprite cured AIDS. And yet, as a result of court decisions and legislation, there are things that we cannot say. That doesn’t mean government isn’t limited, it just means that the nature of that limitation is ultimately about practical politics in the context of various institutions, rather than simply what any one of us wants the constitution to mean. At a minimum, I find the simple assertion that we have a “limited government” to be problematic not because it is false, but because it is an incomplete formulation at best and ignores the fact that one cannot actually just appeal to the constitution to end the discussion. Indeed, the appeal to the constitution is what starts the debate, rather than ending it.
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*Yes, there is a second chamber: the House of Lords. However, in terms of daily governance, the House of Commons is all that matters. When it comes to basic legislation, the House of Lords has only delaying powers, and those are deployed infrequently. As such, the party that controls the Commons controls lawmaking in the UK.
**At the moment there is actually a coalitional government made up of the Conservatives and the Liberal Democrats. This is one of those “exceptions that proves the rule” cases, insofar as this is a rare situation.
***There has been some devolution in the last couple of decades, however.
