Who's in Charge Here? The Puzzle of Limited Government

Imagine you’re playing a game of pickup basketball. Everyone agrees on the basic rules: no traveling, no double-dribbling, fouls lead to free throws. But suppose one player—let’s call her Maya—starts changing the rules whenever it helps her team. “Actually, today stepping with the ball is fine.” “That wasn’t a foul, I barely touched him.” At what point does the game stop being basketball? And more importantly, once Maya can change the rules whenever she wants, is anyone really in charge of her?

This is roughly the puzzle that constitutionalism tries to solve—but for entire countries instead of basketball games. The basic idea is simple and old: government power should have limits. The leaders shouldn’t be able to do whatever they want. There should be rules that bind them, even when they’d rather not be bound.

But here’s where it gets weird: if the government makes the rules, who makes the rules about what the government can do? And if the government can change those rules too, then are they really limits at all? You might think the answer is obvious—just write everything down in a constitution and that settles it. But philosophers and legal scholars have been arguing about this for centuries, and they still haven’t agreed on the basic questions.

The Problem of Self-Binding

Let’s say you want to stop yourself from eating an entire bag of chips before dinner. You might make a rule: “I will only eat three chips.” But you’re the one who made that rule, and you’re the one who can break it. So is it really a rule, or just a suggestion you made to yourself?

This is exactly the problem a 19th-century legal thinker named John Austin noticed about constitutions. He thought that all law is basically a command from someone in charge. If that’s true, then the person in charge can’t be limited by law—because they’d have to command themselves, and you can’t really command yourself (except in a metaphorical sense). For Austin, the idea of a government that limits itself through its own constitution was like the idea of a square circle.

But wait, you might say—what about countries like the United States, where the Constitution clearly limits what Congress and the President can do? Doesn’t that prove Austin was wrong?

Austin had a clever answer. He said that the real sovereign—the one with ultimate power—isn’t the government at all. It’s “the people.” The government is just acting on their behalf. So the people can limit their government through a constitution, and that’s fine, because the people themselves remain unlimited. The government is bound, but the people aren’t.

This raises a new problem, though, noticed by another legal philosopher named H.L.A. Hart. If “the people” are the ones giving commands, and the government is made up of people too, then basically the people are commanding themselves—and we’re back to the square circle. It seems like we need to think about this differently.

What’s a Constitution, Anyway?

In the simplest sense, every country has a constitution—even a dictatorship. A constitution is just the set of rules that says who has power and how they can use it. Even a king who can do anything he wants has a constitution: it’s the single rule that says “the king can do anything.” That’s a constitution in the minimal sense.

But when people talk about constitutionalism (with an “ism”), they usually mean something richer. They mean that government power should be significantly limited, usually by things like rights (freedom of speech, right to a fair trial) and by rules about how power is divided up. In this richer sense, the king who can do anything doesn’t have constitutionalism—he has a constitution, but it doesn’t really limit him.

Here’s a useful distinction: we need to separate sovereignty from government. Sovereignty is the ultimate source of power and authority. Government is the set of institutions that actually exercise power day to day. In a constitutional democracy, the people are sovereign, and the government is limited. The people can (in theory) change their constitution, but the government can’t change it whenever it wants. This separation makes it possible to say: the government is limited, even though someone (the people) remains unlimited.

Can You Really Tie Your Own Hands?

Even if we separate sovereignty from government, there’s a deeper puzzle. Most constitutions are entrenched—meaning they’re harder to change than ordinary laws. You can’t just have a simple majority in Parliament vote to delete freedom of speech from the constitution. You need something more: maybe a supermajority (two-thirds vote), maybe a referendum, maybe approval from state governments.

This entrenchment seems important. If the government could change its limits whenever it wanted, are those really limits? But here’s the thing: the rules about how to change the constitution are themselves part of the constitution. They can be changed too. So we end up with a kind of infinite regress: the rules for changing the rules can themselves be changed, and so on.

This isn’t just a theoretical puzzle. Think about the United States Constitution. It says you need a two-thirds vote in both houses of Congress and ratification by three-quarters of the states to amend it. But what if someone tried to change that rule itself? Could Congress and the states use the existing amendment process to make it easier to amend the Constitution? Nobody really knows. The Constitution doesn’t say.

Written or Unwritten?

You might think a constitution has to be a written document. But the United Kingdom doesn’t really have a single written constitution, and nobody doubts that it has constitutional limits on government power. The UK’s constitution is a mix of written documents (like Magna Carta from 1215), court decisions, and unwritten conventions (like the rule that the monarch must sign whatever Parliament passes).

Some people argue that unwritten rules are too vague to really limit government. But that’s not obviously true. Sometimes unwritten traditions are even harder to change than written rules. If a rule exists only because everyone expects everyone else to follow it, you can’t just vote to get rid of it—you’d have to change a whole culture.

Who Decides What the Constitution Means?

Here’s where things get really interesting. Even if you have a perfect written constitution with clear limits, someone has to interpret it. And the interpreter has enormous power. As an 18th-century bishop named Benjamin Hoadly said: “Whoever hath an ultimate authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.”

Think about the First Amendment to the US Constitution: “Congress shall make no law… abridging the freedom of speech.” That seems pretty clear. But does it protect someone who posts hate speech online? Does it protect a student who wears a T-shirt with a political message to school? Does it protect a corporation that wants to spend unlimited money on political ads? The words haven’t changed, but people’s answers to these questions have changed dramatically over time.

This creates a fundamental disagreement among constitutional thinkers. Two main camps have emerged.

The “Fixed View” (Originalism)

Some people think a constitution should be interpreted based on what it meant when it was written. If the people who wrote the Constitution didn’t think “freedom of speech” covered campaign spending by corporations, then it doesn’t cover that today. This view is called originalism. Its defenders argue that constitutions are supposed to be stable ground rules—like the rules of a game. If you let referees change the rules during the game, the game falls apart.

A famous originalist judge named Antonin Scalia once said that the Constitution is “dead, dead, dead.” He meant that as a compliment. The whole point, he thought, is that the Constitution fixes certain things so that they don’t change with every political fashion. If you want to change it, go through the amendment process.

But originalists have a problem: what exactly is the “original meaning”? Is it what the writers of the Constitution intended privately in their heads? What the general public understood the words to mean at the time? What the writers would have wanted if they could see the future? These can all be different.

More importantly, critics argue that originalism ties us to the “dead hand of the past.” Why should people who died 200 years ago get to decide what “cruel and unusual punishment” means today—especially when our moral views have changed? The people who wrote the 14th Amendment (which guarantees “equal protection of the laws”) apparently thought segregation was fine. Are we stuck with that?

The “Living Constitution” View

The other main camp says that constitutions are living documents whose meaning evolves over time. When the Constitution says “cruel and unusual punishment,” it doesn’t mean “whatever punishments were considered cruel in 1791.” It means “whatever punishments are considered cruel now.” The words refer to an evolving moral standard, not a fixed historical one.

This view has its own problems. If the Constitution means whatever judges say it means, then what limits are there on judges? They’re not elected. They can’t be voted out. If they get to decide what “freedom of speech” means based on their own moral views, then the Constitution doesn’t really limit government—it just gives judges the power to do whatever they want.

A version of this debate plays out in a theory called common law constitutionalism. The idea is that constitutional interpretation works like ordinary common law: judges build up a body of precedents over time, and those precedents guide future decisions. The Constitution isn’t just the text; it’s the whole history of cases that have interpreted that text. This creates both stability (because precedent constrains judges) and flexibility (because precedent can evolve).

But Who Gets to Decide?

Underneath all of this lies a deeper worry. If unelected judges get to strike down laws passed by elected representatives, isn’t that anti-democratic? In the United States, the Supreme Court has the final say on what the Constitution means. Five people (a majority of nine justices) can invalidate a law passed by Congress and signed by the President. Those five people were appointed, not elected. They serve for life.

This worries philosophers like Jeremy Waldron, who argues that constitutional review by judges is fundamentally unfair. When citizens disagree about a deep moral question—like whether abortion should be legal—Waldron thinks the disagreement should be settled democratically, through voting and debate, not by a handful of judges who answer to nobody. Why should your view about a moral question count for less than a judge’s view, just because you’re not a lawyer?

Critics of this position point out that democracy can sometimes lead to the “tyranny of the majority.” If 51% of people vote to take away the rights of the other 49%, that’s democratic—but is it right? Constitutional protections exist precisely to prevent that kind of thing. The question is: who should be the umpire?

Some countries have tried middle-ground solutions. In the United Kingdom, courts can declare that a law violates human rights, but Parliament can ignore that declaration if it wants. In Canada, courts can strike down laws, but Parliament can override that decision using a special “notwithstanding clause.” These “weak-form” systems try to balance judicial protection of rights with democratic control.

Does Constitutionalism Even Work?

There’s an even more radical challenge to the whole idea. Some critics—let’s call them “hard critics”—argue that constitutions don’t really protect anyone from government abuse. They just make abuse look legitimate.

Consider a famous US Supreme Court case from 1905 called Lochner v. New York. The state of New York had passed a law limiting bakers to working 10 hours a day and 60 hours a week. The Supreme Court struck down the law, saying it violated bakers’ “freedom to contract.” In other words, the Constitution protected the “right” of bakers to work themselves to exhaustion.

Through the lens of hard critics, what happened in Lochner wasn’t constitutional protection—it was the wealthy using the Constitution to crush worker protections. The judges weren’t neutral interpreters of eternal principles; they were rich people from privileged backgrounds who shared the values of the business class. The Constitution was a tool for maintaining existing power structures, not for challenging them.

This critical view doesn’t just apply to conservative judges. Liberal judges, the critics say, also impose their own values under the guise of interpreting the Constitution. The debate between originalism and living constitutionalism, on this view, is just a debate between two different political agendas, both dressed up in legal language.

Where Does This Leave Us?

Constitutionalism is built on a beautiful idea: that we can create a system where even the most powerful people are bound by rules. That’s what separates a society based on law from a society based on whoever happens to be strongest. But implementing that idea turns out to be surprisingly difficult.

The central tension keeps reappearing in different forms: who watches the watchers? If the government is bound by a constitution, who makes sure the government obeys? If judges enforce the constitution, who enforces the judges? If the people are the ultimate sovereign, can they ever be wrong?

Nobody has fully resolved these questions. What most constitutional democracies have done is build systems that seem to work reasonably well in practice, even though nobody can fully justify them in theory. We have judges who interpret constitutions and strike down laws, and we hope they do so wisely and fairly. But the philosophical puzzles underneath remain unsettled.

Maybe that’s okay. Maybe constitutionalism isn’t a finished product—it’s an ongoing argument about how to balance freedom, democracy, and justice. Every generation has to have the argument again, because the answers that worked for our grandparents might not work for us. The beautiful thing about constitutions might be not that they settle things forever, but that they give us a shared language for arguing about what justice requires.

Appendices

Key Terms

Term	What it does in the debate
Constitutionalism	The idea that government power should have meaningful limits, usually enforced through some kind of legal system
Sovereignty	The ultimate source of political authority; whoever or whatever has the final say
Entrenchment	Making constitutional rules harder to change than ordinary laws, so the government can’t easily escape its limits
Originalism	The view that constitutions should be interpreted based on what they meant when they were written
Living Constitutionalism	The view that constitutions should be interpreted in light of changing circumstances and moral understanding
Judicial Review	The power of courts to strike down laws that violate the constitution
Common Law Constitutionalism	A version of living constitutionalism where the constitution’s meaning develops gradually through court precedents, like ordinary common law

Key People

John Austin (1790–1859): A legal theorist who thought all law was a command from a sovereign, and therefore the sovereign couldn’t be limited by law—leading him to deny that constitutional limits on government were really possible.
H.L.A. Hart (1907–1992): A legal philosopher who pointed out problems with Austin’s view, especially the puzzle of how “the people” could command themselves.
Antonin Scalia (1936–2016): A US Supreme Court justice who was the most famous defender of originalism; he once said the Constitution is “dead, dead, dead” and meant that as praise.
Jeremy Waldron (born 1953): A philosopher who argues that constitutional review by unelected judges is anti-democratic and that deep moral disagreements should be settled by voting, not by courts.
Ronald Dworkin (1931–2013): A legal philosopher who argued that constitutions enshrine abstract moral principles, not fixed historical meanings, and that interpreting them requires moral judgment, not just historical research.

Things to Think About

Suppose your school has a student council that can make rules for student behavior. But the principal can overrule any rule the council makes. Does the student council have real power? Does it depend on whether the principal actually overrules them, or on whether they could?
Imagine a constitution that says “everyone has the right to a fair trial.” Now imagine the country’s highest court decides that “fair trial” means different things for rich people and poor people. Is the court interpreting the constitution or changing it? How would you tell the difference?
If you knew that a majority of voters wanted to ban a specific political party from running for office, should the courts be able to stop them? On the one hand, it’s undemocratic to stop the majority from having its way. On the other hand, maybe democracy needs certain rules to protect itself. Where would you draw the line?
The philosopher Ronald Dworkin thought judges in constitutional cases were like partners with the people who wrote the constitution, working together on an ongoing project. But what if the people who wrote the constitution were racist, sexist, or otherwise morally wrong by modern standards? Should today’s judges treat them as partners or as obstacles?

Where This Shows Up

Every time the US Supreme Court issues a controversial ruling (like on abortion, gun control, or voting rights), the fight between originalism and living constitutionalism is happening in real time.
Countries that are writing new constitutions (like Chile’s recent attempt, or South Africa after apartheid) have to decide exactly these questions: how entrenched should rights be? Who interprets them?
The debate about whether social media companies can ban users or remove posts touches constitutional questions about free speech—even though the companies are private, not government.
When people argue about whether a president or prime minister has “gone too far” or “abused their power,” they’re making implicit claims about constitutional limits—even if they don’t use the philosophical vocabulary.