The idea of limited government is closely associated with political thinkers, mostly of medieval and modern periods, who placed special emphasis on preventing abuses of government. Some spoke of limitations connected with divine law and natural law; others spoke of a social compact establishing government for the sake of protecting property and other individual rights. Limited government was also a corollary of the more affirmative approach of ancient philosophers, who taught that ruling bodies could best maintain themselves by respecting social customs, moderating their policies, honoring the contributions of each social class in distributing governmental offices, and fostering self-restraint, patriotism, and other attitudes conducive to the general welfare.
In American constitutional thought limited government is often synonymous with constitutionalism itself. It has three more specific connotations resulting from the three principal ways in which the government can be said to be constitutionally limited: in a jurisdictional sense, limited in the objectives it may pursue; in a procedural sense, limited in the ways it may decide policy questions and adjudicate disputes involving individuals; and limited by the requirement that its policies be compatible with individual rights.
The first sense of limited government refers to the enumeration of powers through which the Constitution outlines the jurisdictional concerns of the national government. This method of limitation has failed. The enumeration of powers is now a dead letter as a result of the nationalizing tendencies of American economic and social life, which the Supreme Court has accommodated through its interpretations of the tenth amendment, the commerce clause, the necessary and proper clause, the general welfare clause, and the civil war amendments.
As for the second, or procedural, mode of limitation (structural limitations on policy formation and due process limitations on adjudication), some contemporary constitutionalists regard it as the only philosophically acceptable variety. These theorists tend to follow a value-neutral conception of constitutional democracy which is both at odds with citizen presuppositions about the goals of politics and supported by no compelling historical or philosophic argument. Respect for procedural ideas like separation of powers, representative government, and due process is indeed central to American constitutionalism, but not because that tradition is indifferent to different ways of life and the ends of government. A traditional respect for procedure is rather an aspect of the Enlightenment commitment to liberal toleration or reasoning in human affairs, as opposed especially to precipitous decision and government in the name of divine authority. The value-neutral variety of proceduralism is inconsistent with this tradition because it denies the possibility of rationally defending the practices, conditions, and attitudes conducive to reasoning itself.
Americans typically associate limited government first and foremost with constitutional rights and judicial review."By a limited constitution," wrote alexander hamilton in the federalist #78, "I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."
Yet courts are also agencies of government, and groups throughout American history have opposed judicial protection of some rights as the least majoritarian and therefore least legitimate subordination of other rights. Some theorists believe society has a way of arriving at pragmatic adjustments of conflicting views (lax enforcement of laws against contraception and abortion, for example) that cannot be reconciled at the level of moral principle. They regard judicial intervention in behalf of those persons who brook no compromise as divisive to the point of undermining everyone's right to live in a peaceful society. Many citizens seem profoundly bitter over their loss of freedom to live and raise their children in communities that exclude sexually suggestive entertainment, political deviants, and others, including members of other races and religions. Their criticism of the judiciary's protection of rights suggests a community oriented understanding of rights, for they themselves want the right to be members of communities that use official power to exclude some kinds of people as equals or to exclude them altogether. This community-oriented conception is highly visible in the demands of some religious groups for organized prayer in public schools despite offense to others.
But a community orientation of sorts is also implicit in demands for public recognition of the rights of privacy like those involving property, sexual freedom, and conscience. In effect, persons who demand these rights seek the right to live in communities that honor the rights demanded. Rights to property, for example, are hardly secure if the general public is unwilling to exercise the restraint and undertake the sacrifices that honoring such rights entails. It is therefore not surprising that defenders of property should treat "free enterprise" as an article of the community's gospel and special identity. For if any rights are genuine exemptions from legislative power, their enjoyment must not be left to prudential calculation. And if the government has no authority to invade them, those rights must at once be grounded in higher authority and be essential to the nation's identity in a way that it would make no sense to violate them for the sake of saving the nation. The religious right wing of American politics has a point in contending that "secular humanism" is itself something of a religious imposition on fundamentalists, who are thereby forced to live among what they regard as evil practices. Maxims of liberal toleration are no answer to these people because liberals themselves cannot tolerate being governed by thoroughly dedicated fundamentalists—those who would live every aspect of their lives as they think they should, even if that should mean employing coercive government against those who would stop them. Religiously committed folk can be excused for believing that liberalism tolerates illiberalism only by degrading it to a form of play-acting to be confined to churches, the home, or wherever one goes for respite from the serious world of education, work, and government. Defending liberalism thus requires an argument (eventually a persuasive one) that liberalism is a better way of life—that, wherever feasible, it is better for human beings to have a liberal outlook and live in secular communities that tolerate illiberal speech only, not action.
Deepening ideological divisions in American life indicate that constitutional rights can place real limits on government only where public morality favors honoring rights. Hamilton said as much in The Federalist #84 where he criticized naïve reliance on bills of rights to protect the rights themselves. "[W]hatever fine declarations may be inserted in any constitution," he said, the security of rights "must altogether depend on public opinion, and on the general spirit of the people and of the government." It follows that governments that would honor rights effectively should work for the social and economic conditions and attitudes that are favorable to honoring rights. If rights are to remain effective limits on government, the ends of government will have to include the virtue of its citizens. Limited government in a modern sense will have to converge toward limited government in an ancient sense.
Sotirios A. arber
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Dworkin, Ronald 1981 The Forum of Principle. New York University Law Review 56:469–518.
Purcell, Edward A., Jr. 1973 The Crisis of Democratic Theory. Lexington: University Press of Kentucky.