Can a Rule Book Really Control a Government?
Two Rulers, Two Worlds
Imagine two nearby countries. In Absolutia, King Rex can make any law he likes. He can declare that hats are illegal on Tuesdays, throw someone in jail without a trial, and enforce everything himself. No rule stops him. Across the border in Limiterra, Queen Regina also makes laws, but she cannot pass any law about religion. That rule is carved in a stone tablet she cannot simply erase.
Both countries have some form of constitution — the basic set of rules that creates a government and says who can do what. In Absolutia, the constitution is a single rule: Rex has unlimited power. But most scholars today use the word constitutionalism to mean something more. They mean the idea that government power should be limited by rules, and that the government’s authority depends on following those limits.
Thomas Hobbes (1588–1679) thought a ruler like Rex was the only way to stop life from becoming, in his famous phrase, “solitary, poor, nasty, brutish and short.” He believed that unlimited sovereignty — supreme power — was necessary to keep order. John Locke (1632–1704) disagreed. He argued that government is created by a social contract and that the real sovereignty stays with the people, who can remove a government that oversteps its limits. This debate still shapes how we think about constitutions today.
Who’s Really in Charge? The People, Not the Government
If Regina is blocked from passing religious laws, who could possibly change that rule? The answer, in most modern democracies, is not Regina herself. The people who created the constitution hold sovereignty — the highest, possibly unlimited power to make the rules. The queen and her officials are the government, exercising power temporarily on behalf of the people.
This difference between sovereignty and government lets us talk about limited government and unlimited popular sovereignty. The people’s authority is final, but the government’s powers are hemmed in. As Locke might say, the people keep the right to replace a government that breaks its constitutional limits.
To make those limits stick, constitutions are often entrenched. That means the government cannot change the rules just because it feels like it. Changing a constitution usually takes special steps — maybe a two‑thirds vote in the legislature, a national referendum, or agreement from many regional governments. Entrenchment stops a ruler like Rex from simply crossing out a limit whenever it becomes inconvenient. But even the most entrenched constitution can be changed if the sovereign people push hard enough. That’s what separates a flexible rulebook from an unchangeable prison.
Frozen in Time or Growing Like a Tree?
Suppose a constitution says “cruel punishment is forbidden.” In 1790, most people agreed that flogging was not cruel. Today, many believe it is. So what does that old phrase really forbid? This question fuels one of the liveliest fights in constitutional thinking.
On one side are originalists. They say the meaning of a constitution is fixed — it should be understood the way its authors and the people of their time would have understood it. Justice Antonin Scalia (1936–2016) was a famous originalist. For an originalist, if the authors of a constitution thought flogging was fine, then a ban on cruel punishment does not stop flogging today. Otherwise, they argue, judges can twist the constitution to match their own political views, which destroys the stable framework a constitution is supposed to provide.
On the other side are living constitutionalists. They argue that a constitution’s abstract moral language — phrases like “equal protection” or “cruel punishment” — is deliberately open. The authors chose those words, living constitutionalists say, knowing that future generations would fill in the details based on their own improved moral understanding. David Strauss (born 1951) and other living constitutionalists compare this to how judges in common‑law countries develop the law of negligence over many cases. The constitution grows, but in a disciplined way, limited by past judicial decisions and shared legal reasoning. This approach, they insist, does not give judges a free hand; it requires them to build on what earlier courts have decided.
Originalists reply that law‑making should be done by the people’s elected representatives, not by judges guessing what “cruel” means in a new century. Living constitutionalists fire back that originalism ties a democracy to the dead hand of the past, making it hard to respond to new technology, new knowledge, and new moral beliefs. The dispute is not settled, and it shapes how courts decide cases about your rights.
Who Gets to Decide? Judges and the Democratic Worry
In many countries, courts have the power of judicial review — they can decide whether a law passed by Parliament or Congress fits with the constitution. In the United States, the Supreme Court can strike down a law entirely. In the United Kingdom, courts can declare a law incompatible with human‑rights protections, but Parliament has the final say. Canada has a “notwithstanding clause”: the Supreme Court can say a law violates rights, but the legislature can override that ruling.
This power is intensely controversial. Jeremy Waldron (born 1953) and other democratic critics argue that strong judicial review gives too much power to unelected judges. In a democracy, each citizen should have an equal say in the laws that govern her, either through voting or through the representatives she elects. When a handful of judges, often from elite backgrounds, strike down a law that most citizens and their representatives support, it can look like rule by judges, not rule by the people. Split votes in courts, often falling along political lines, add to the unease.
Defenders of judicial review reply that some limits must be placed beyond the reach of short‑term politics. Without courts protecting rights, minorities could be crushed by a majority — what John Stuart Mill called the tyranny of the majority. But even many defenders agree that strong‑form review, where judicial decisions are final and irreversible, creates real democratic tension. That is why some countries prefer weaker forms that leave the last word with the legislature.
Why It Matters Every Day
It can feel like these debates happen in dusty courtrooms far away. But they touch your life directly. The right to speak your mind at a school assembly, the right to be free from an unfair search of your locker, the protection against being punished in a harsh and degrading way — all of these hang on what the constitution means and who gets to decide.
When judges disagree about whether an old text protects a new form of protest on social media, they are living out the clash between originalism and living constitutionalism. When citizens argue whether a court should have blocked a popular new law, they are wrestling with the same democratic worry that Waldron raises. Every generation inherits a constitutional framework and has to decide whether it will be a locked box or a living tree. And that decision is not made just by lawyers; it is made in classrooms, on the bus, and at the dinner table when you ask yourself what rules should truly control the people who govern you.
Think about it
- If you wrote a rulebook for a club and you knew future members might have very different values, would you want the rules to stay exactly as you wrote them, or would you let future members adapt them? Why?
- Should judges who are not elected be allowed to overturn a law passed by elected politicians, if they think the law violates basic rights? What reasons make you lean one way or the other?
- A constitution says “cruel punishment is forbidden.” In 1800 almost everyone thought whipping was not cruel. Today most believe it is. Should the courts be able to ban whipping using the same old words, even though the original authors did not intend that?
