'Assess the view that the US Constitution often ensures limited government.'
Written by Finlay Mairead Jan 2013.
Introduction: Definition of a limited government – that the size and scope of the federal
government is limited to an extent in which it is necessary only for the common good of
the people. Founding Fathers wanted to ensure limited government introduced three
independent yet co equal branches that check the power of others.
Separation of powers : Adopted from writings of Montesquieu, powers are shared
through an elaborate series of checks and balances.
Examples : Congress has legislational power – power checked by presidential veto
Supreme Court can decide laws and actions are unconstitutional through power of
judicial review. – Discovered in the 1803 Marbury v Madison case.
Presidential appointments need to be confirmed and presidential treaties ratified with
advice and consent of senate p.g. 16/17
Synopticity : UK has fusion of powers executive being drawn from legislature and also
responsible to it ( a parliamentary executive) As a result, there are fewer checks and
balances.
Criticisms; system offers an “invitation to struggle” as a result of power struggles
between branches can result in institutional gridlock – with little being achieved. Some
may argue this leads to a weaker government, and difficulty in making decisions
Evaluation: whilst there is criticism for separation of powers, ultimately does ensure
more often than not limited government. System mean branches of government must
work co-operatively which leads to consensus seeking.
Bill of Rights : Founding Fathers were concerned above all to protect rights and liberties
of citizens under new Constitution – Declaration of Independence. Potential tyranny of an
over powerful government. 1st and 10th amendment in particular also laid out in
constitution that citizens are given inalienable and entrenched rights.
Citizens rights entrenched and is supreme law, ensures constitution is sovereign and
therefore rights are guaranteed in the Constitution and cannot be breached by government.
All rights protected by Supreme Court however can give alternative interpretations over
time
Synopticity: Rights are not entrenched or guaranteed in UK, discuss Human Rights Act
briefly.
Evaluation : Ultimately helps to ensure limited government, however does incur
problems.
Federalism: define , constitutions can be unitary or federal, origins of US Constitution as
a federal constitution lay in Articles of Confederation.
Arguably provides an additional set of checks and balances on the exercise of power,
guards against an over powerful central government.
Criticism: Over fragmentation of government can also lead to gridlock .Can result in
states refusing to conform. E.g. 1954, refusal of the southern states to de-segregate after
Brown v Topeka decision, claiming states rights allowed them to refuse.
Significant economic inequalities between rich and poor states such as Louisiana and
Connecticut – only federal government can solve this problem.
Evaluation : Does more often than not ensure limited government, in words of Madison
avoids “the danger of too much power in too few hands” – another set of checks and
balances on the exercise of political power.
Conclusion
Discuss different provisions considered in constitution, conclude that the US constitution
often ensures limited government.
Assess the view that the US Constitution often ensures limited government
Introduction
The US Constitution , written in Philadelphia in 1787 by the Founding Fathers, was the
product of the revolutionary war of independence, with it's foundations strongly
influenced by the works of political theorists such as Jean Jacques Rousseau and John
Locke1. The Founding Fathers favoured a government that prevented any individual or
particular group using its power to damage the interests of other people. Furthermore,
they strongly opposed the notion of excessive government power, seen as a potential
threat to individual freedom, wanting to protect minorities as well as the population as
whole, from arbitrary or unjust rule2. Consequently, the Founding Fathers outlined main
provisions within the US constitution in order to avoid potential tyranny : the separation
of powers, a federal structure of government and also providing citizens inalienable and
entrenched rights through the implementation of the Bill of Rights. Arguably, these
provisions as a result mostly ensure , as the Founding Fathers had hope to achieve,
limited government; in so much as the size and scope of the federal government is limited
to an extent in which it is necessary only for the common good of the people3. However,
some critics argue that on the contrary, that problems arise due to provisions laid out by
the Founding Fathers, such as potential gridlock ,amongst other issues ,hinders limited
government. Moreover, the evolving nature of federalism does not always ensure limited
government. Therefore, in order to assess as to whether the US Constitution more often
than not, ensures limited government, it is important to consider and evaluate the main
aspects of the US constitution that outlined limited government before coming to a
reasoned conclusion.
Separation of Powers
The separation of powers prevalent in the USA , whereby political power is distributed
between the executive, the legislature and the judiciary branches of government, were
adopted from the Founding Fathers by the principles of Montesquieu, who argued for a
separation of powers into legislative, executive and judiciary branches in order to avoid
tyranny4. This framework of government implies not only the independence of
government between the three branches, therefore a separation of personnel ( for example
both Hilary Clinton and Barack Obama had to give up their Senate seats when becoming
President and Secretary of state5) but also interdependence of the branches of
government. The interdependence of the branches laid out within the constitution
arguably, as some may regard, creates limitations on federal government, due to the
series of checks and balances that occur between them. Therefore, this can be seen to
prevent any of the branches from becoming too powerful. For example, Congress has
legislative power, but this power is checked by the presidential veto, whist the
presidential veto is checked through the use of a congressional override, requiring a super
majority in both house of Congress. Moreover, the Supreme Court has the power of
judicial review upon the other branches, enabling them to declare laws and actions
unconstitutional6. This acts in stark contrast to the UK, whereby there is a fusion of
powers, with the executive drawn from the legislature and also responsible to it.
Consequently, this arguably leads to less effective checks and balances due to the lack of
separate personnel prevalent, leading to a concentration rather than a diffusion of
powers7. As a result, this has lead some to consider that these fusion of powers leads to
executive dominance, or as Lord Hailsham remarked, an “elective dictatorship”8.
However, the system of the separation of powers within the USA has been criticised,
leading some to question as to whether the system put in place by the Founding Fathers in
order to restrain an excessive government, actually effectively prevents this possibility.
Arguably, the system offers an “invitation to struggle” as a result of power struggles
between branches which can ultimately lead to institutional gridlock. This can lead to
little being achieved, and could lead to a potentially weaker government. For example, in
1995 tension between the Republican controlled Congress and the Democrat President
Clinton over the passage of the federal budget lead to parts of the federal government to
close when funds had run out9.
Moreover, some may argue that the checks and balances put in place still create an
inequality in the distribution of power. This has lead some critics to argue that certain
branches have substantial power over others, which could contradict the notion of limited
government.
For example John Dumbrell has argued that the era of the “war on terror” has involved
new concentrations of power in the executive branch in general as well as the White
House, with presidential power being able to thrive in emergency,with the powers
returning upon the September 11th atrocity in 200110. This enabled Bush to use his
“inherent” power to override Congress on pre- emption, enabling Bush to order military
action to pre-empt hostile attacks against the USA. Furthermore, Schlesinger has argued
that the checks and balances established by the Constitution and the acquired powers of
Congress have been put into jeopardy by the “imperial” executive, due to the “assault” of
the Congressional power of declaring war being overridden. It has also been seen in
President Nixon’s reign, through the impoundments of funds, allocated for particular
purposes by Congress11.
Nevertheless, some critics argue that the judiciary are the final arbiters of what is meant
by the principle of separation of powers, which therefore provides the judiciary with
subordinate levels of power12. Moreover, Chief Justice Hughes concluding that the
“Constitution is what the judges say it is” due to the ability to interpret the constitution13.
In America, although Congress may pass new laws affecting courts, ultimately judges
decide.
Evaluation
Ultimately, it appears that the framework of a separation of powers put into place within
the Constitution can be seen to result in a limited government, however it does encounter
problems such as gridlock. Although, it seems apparent that the system does mostly
create a spirit of bipartisanship, with branches of government working co operatively in
order to achieve success, leading arguably to more consensus seeking. Moreover, it can
be argued that the checks and balances ensure limited government and retain the liberty
of citizens due to the provision of more levels of government, providing greater access
for citizens, and therefore keeping the government responsive to the people. Therefore,
leadership is difficult precisely because the framers of the constitution wanted it to be so,
as Thomas Crown and Michael Genovese once suggested “opportunities to check power
abound, therefore opportunities to exercise power are limited” . Consequently, checks
and balances put in place on separation of powers leads to a limited government in favour
of the people.14
Federalism
Federalism is a theory of government by which political power is divided between a
national government and also state governments with each having their own area of
substantive jurisdiction15. The origins of the US constitution as a federal constitution lay
in the Articles of Confederation Federalism essentially involves a degree of
decentralisation as power is dispersed between two levels through the division of power
between the national (federal) government and the 50 individual states16. As a result, this
federalist structure is often refereed to as dual sovereignty. This acts in stark contrast to
the unitary system prevalent in the UK, whereby there is a principle of parliamentary
sovereignty, as power is centralised and concentrated in Parliament.
Arguably the federalist structure of the USA does often ensure limited government , as it
avoids as Madison remarked “the danger of too much power in too few hands”17, due to
being seen to provide checks and balances on the exercise of power, preventing an
excessively dominant central government. Moreover, pluralism is often associated with
decentralisation, as federalism arguably implies that neither federal or state governments
can excessively dominate, therefore limiting government18.
However, the nature of the federal state relationship has developed and changed over
time and has not always resulted in limiting federal government. This is evident in the era
of Co-operative federalism, referred by political scientist Morton Grodzins as a phase of
federalism seen as a “marble cake”, due to the partnership that evolved between the two
levels of government, that undoubtedly saw a huge expansion of federal government
intervention after the Great Depression. This was also seen in the period of the Great
Society under Lyndon John son’s administration of the 1960's, where money was given
to the states but with strings attached, so there was arguably more control by the federal
government. As a result ,the constitution can be seen as not always ensuring limited
government. Moreover, critics such as Anthony Bennett have suggested that federalism
can also lead to gridlock which can result in an “atomisation of both politics and
society.”19 In the sense that the federalism can lead to over fragmentation, which can
lead to states being obstructive and refusing to conform. For example, the refusal of
southern states to de-segregate after the Brown decision in 1954, claiming the states
rights allowed them to refuse. There is also the issue of significant economic inequalities
between rich and poor states such as Louisiana and Connecticut, with only federal
government having the ability to solve this problem.
Moreover, the “supremacy clause” of the Constitution ensures that federal government
law prevails in a dispute and this has been upheld in several Supreme Court rulings over
the implied powers, such as in the McCulloch v Maryland (1819) case which established
this. The courts interpretation paved the way for later rulings upholding federal over state
power.
Evaluation
The implementation of federalism by the constitution in theory can be seen to limit
government due to fragmenting the power between the layers of government and
avoiding its concentration. Yet, in reality it seems the prevalence of the Supreme Court
rulings in recent years, and the developing nature of federalism itself that has gone
through various phases of federalism whereby federal government power has both
increased and diminished depending on the government in power, certainly creates doubt
as to whether the constitution truly ensures limited government.
The Bill of Rights
The first ten amendments to the Constitution, the Bill of Rights, came into effect in 1791,
limiting the powers of the federal government of the United States whilst also protecting
the”inalienable” rights of all citizens, residents and visitors in American territory20 for
example the 1st Amendment ensures freedom of speech, whilst the 10th Amendment
concerns reserving state rights. In the original provisions of the constitution, Madison felt
that the constitution did too little to protect citizens or for that matter, the states from an
over powerful federal government, and the Founding Fathers were concerned above all in
ensuring the protection of the rights and liberties of citizens under the new Constitution,
keen to prevent potential tyranny of an over powerful government21. The constitution, in
particular reference to the Bill of Rights, were designed by the Founding Fathers to limit
government's role to what was regarded as government's most essential functions: To
preserve individual liberty and protect private property. As a result, the Bill of Rights
ensures that citizens rights are entrenched and is supreme law. This ensures that the
constitution is sovereign and therefore rights cannot be breached by government and are
guaranteed by the constitution. On the contrary, within the UK, whilst Parliament has
passed the Human Rights Act in 1998, citizens rights are neither entrenched nor
guaranteed due to their being no equivalent Bill of Rights. Judges within the UK do not
have the power of declaring an act unconstitutional using judicial review unlike in the
US, only the ability to declare an “issue of incompatibility” if a new law contravenes
with the European Convention of Human Rights incorporated into the Act.
However, rights have not always been fully protected by the Bill of Rights, with the US
arguably having a poor record of civil rights and liberties22. This has lead some to argue
that rights, despite constitutional protection, merely depends upon the events and climate
within any given period of time. For example, the denial of voting rights to women till
1918, and the denial of voting and civil rights to black Americans after the Fourteenth
and Fifteenth amendments, when Jim Crow laws and segregation prevailed in southern
states. In more recent times, the introduction of the Patriot Act passed by Congress ,
regarding the use of anti terrorism measures such as electronic surveillance was deemed
by many as undermining constitutional rights. Nevertheless such apparent infringement
was not declared “unconstitutional” by the Supreme Court23. Consequently, some
consider that whilst the judicial review power limits government, as to whether it is at the
extent to which is necessary for people’s liberties is another matter.
Evaluation
The Bill of Rights outlined within the Constitution by the Founding Fathers appears to,
more often than not ensure limited government, primarily due to the judiciary's power to
interpret the constitution and whether Acts are unconstitutional or not. This power can as
a result be seen to limit the power of federal government to a means as which it is
necessary for the people, protecting their “inalienable rights”. However, due to the fact
that civil rights and liberties have not always been fully protected by the Bill of Rights
certainly does call into question as to whether government is limited at a detriment to
citizens rights, or perhaps that the federal government is still able to be over powerful, for
example the Patriot Act put in place in recent years.
Conclusion
Having looked at the main provisions outlined by the Founding Fathers in the hope of
ensuring a limited federal government, such as the separation of powers and the checks
and balances that such a system occurs, federalism and the Bill of Rights, it does appear
the overall, the Constitution does often ensure limited government. This is primarily
through the entrenched rights given to citizens. However, that is not to say the
constitution in terms of limiting government does have certain faults, such as the
recurrent issue of gridlock, which can be seen to limit government to it's detriment, by
effectively weakening government as certain issues and provision remain dead locked.
Yet ultimately, the US constitution does appear to often ensure limited government.
Bibliography
Harris, Colleen “The Politics of the USA” Hachette, 2012
Lynch , P. & P. Fairclough (2010) “UK Government and Politics”, UK: Hachette
Watts, Duncan (2003) Understanding US/UK Government and Politics, Manchester
University Press.
Bennett J. Anthony (2001) A2 US Government and Politics Exam Revision Notes, Phillip Allan Press
Dumbrell, John, (April 2006) Politics Review:Revising US Presidential Power
Ashbee, Edward (April 2006) Politics: Presidential Power: Gridlock?
http://www.ourcivilisation.com/cooray/btof/chap174.htm
http://www.humanrights.com/what-are-human-rights/briefhistory/declaration-of-independence.html