explain the most common way of limiting the powers of government by the constitution
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Answer:
There are three methods by which Constitutions seek to limit the area of power of the three organs of government —
(i) through a Bill of Rights,
(ii) through the system of checks and balances, and
(iii) through the device of federalism.
Though (ii) and (iii) are treated separately, (iii) is an application of (ii).
A Bill of Rights
A Bill of Rights as contained in the Amendments to the US Constitution, provides an admirable philosophical statement, for application in concrete situations, of the basis on which the power of legislatures and governments may be limited. A Bill of Rights places limitations on the powers of government and creates an area of freedom for individual action. The problem with the US Bill of Rights has been that after the New Deal, it was construed by judges who have re-interpreted its philosophical basis. The US Bill of Rights has provided some significant limitations on state power in the US. In the hey-day of American liberalism, if not for the Bill of Rights, there would have been far more interference with individual freedom, with the consequence that the US would be a less free place than it is today.
The basic problem with the proposed and rejected Murphy, Evans and Bowen Bills of Rights was that they did not limit government power. What provisions they contained for limiting power were cancelled out by provisions which enabled government organs to avoid the effect of these limitations. The limitations on power were rendered nugatory. These Bills were Bills of Rights in name only and were frauds perpetrated on the public. A Bill of Rights provides rights to individuals to protect themselves from the encroaching power of government. Not only did these Bills not contain effective provisions to limit government power, they provided means by which governments could extend and expand their power.
Checks and balances
A true liberal system contains many devices for division of power in society through checks and balances. This system operates through
i. the law and the Constitution and
ii. interaction between individuals and institutions in a free society.
(ii) is analysed in section 17.6. The following analysis focuses on the first factor, which operates through a Constitution.
The distribution of power among organs through a system of checks and balances in the Constitution and law
"The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another." Montesquieu, The Spirit of Laws, B XI, Ch 6.
After defining the three kinds of powers of the state legislative, executive and judicial, Montesquieu enunciated and justified the principle of separation of powers.
The principle is founded on Lord Acton's assumption, "Power corrupts; absolute power corrupts absolutely". The concentration of all powers into the hands of one individual or group must place them in a position to abuse that power and thus to instil fear into the common man.
Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard liberty against the abuse of power, it is necessary to distribute powers into many independent (or at least semi-independent) centres. When this is done the man who holds power must fear the reaction of other power centres to any abuse of power by him. He must fear the capacity of his potential victims to seek the aid of his rivals. He must especially fear the reaction of his rivals to any attempt by him to expand his powers at their expense. His ability to hide his own transgressions or to intimidate his opposition must be less. He will be vigilant to protect the proper sphere of his own office from encroachments. His policies must be acceptable to the community and the temptations which beset him must be less. He will be more likely to take pride in the regular and proper conduct of the duties appropriate to his office.
The power of a democratic government is often limited by various aspects.
Some of these important aspects are;
1) Various levels of a government system:
A democratic government is divided into many segments and a decision always needs the approval of both higher and lower authorities of a government.
Instant decisions by a single authority is rare in a democratic government system.
2)Rules and regulations:
There are many rules and regulations which are established by the constitution and these rules are kind of speed breaker for the autocratic activities.
3) Pressure groups:
There are groups of highly established people in our society which can apply legal pressure on the government for the benefit of the nation.
And many more.