48 PART ONE THE CONSTITUTIONAL FRAMEWORK CHAPTER 3*LIMITED GOVERNMENT:PRESERVING LIBERTY 49 with colonial legislatures.These actions served only to arouse the colonists with impunity,and society would degenerate to anarchy.Where there is no rule further.England then tried to placate the Americans by repealing the Town- of law,the strong bully the weak. shend duties except for a nominal tea tax,which Britain retained in order to The dilemma is that government itself can destroy civilized society by using display its authority.The colonists viewed the tea tax as a petty insult,and in the its monopoly on the legitimate use of force to brutalize and intimidate its "Boston Tea Party"of December 1773 a small band of patriots disguised as opponents."It is a melancholy refection,"James Madison wrote to Thomas Indians boarded an English ship in Boston Harbor and dumped its cargo of tea Jefferson shortly after the Constitution's ratification,"that liberty should be overboard. Three years later,sporadic acts of defiance had become a full-scale revolution. lepododanger whether thevmt has toomuch or toi In a pamphlet called Common Sense,which sold 120,000 copies in its first three The men who wrote the Constitution sought to establish a government strong months,Thomas Paine had claimed that all of Europe-England,too-was rife enough to enforce collective interests,including national commerce and with political oppression,and that America was humanity's last hope of liberty. defense,but not so strong as to destroy liberty.In devising a government that "Freedom has been hunted around the globe....Receive the fugitive,and was both strong and restrained,the Framers were inclined to err on the side of prepare in time an asylum for mankind."The idea was codified in the restraint.Limited goverment was built into the Constitution through both Declaration of Independence,which Thomas Jefferson prepared and Congress grants and restrictions of political power. adopted on July 4,1776.The Declaration honored the British tradition of specific rights by listing their violations by George II and based its argument for inalienable rights on Locke's philosophy.Even two centuries later,the words of GRANTS AND DENIALS OF POWER the Declaration of Independence are eloquent testimony to the vision of human The Framers chose to limit the national government in part by confining its liberty: scope to constitutional grants of power.Authority not granted to it was in theory denied to it.In a period when other govemments held broad discretion- We hold these truths to,that all men are createdequ that they are ary powers,this was a remarkable restriction. endowed by their Creator with certain unalienable rights,that among these are life, Unlike the British Parliament,which had largely unrestricted legislative liberty and the pursuit of happiness. authority,Congress was limited by an enumeration of its powers.As we saw in That to secure these rights,governments are instituted among men,deriving their just Chapter 2,Congress's lawmaking is constitutionally confined to seventeen powers from the consent of the govemed specified powers and to those actions that are "necessary and proper"to the That whenever any form of government becomes destructive of these ends,it is the execution of those powers.The U.S.president was similarly restricted by right of the people to alter or to abolish it,and to institute new government.... constitutional grants of authority.Unlike the English king,who could invoke broad extraconstitutional authority in a time of crisis,the president was given no extraordinary powers.As for the judiciary,the Framers contained federal Constitutional Restraints on Political Power judges'authority by forbidding them to make broad rulings on issues of their own choosing.The judiciary can decide only those issues raised by actual cases The U.S.Constitution was written eleven years after the Declaration of brought before it by litigants. Independence,with a different purpose.The Declaration was a call to revolu- The Framers also used denials of power as a means of limiting government, tion rather than a framework for goverment and therefore could not be used as prohibiting certain practices that European rulers had routinely used to a blueprint by the men who gathered in Philadelphia in 1787 to write a intimidate their political opponents.The French king for example,could order ANALYZE IHE ISSLE constitution.Nevertheless,a concern for liberty was no less fundamental to the a subject jailed indefinitely without charge or trial.(Among the thousands of Human Nature as a Factor thinking of the delegates to the constitutional convention than it had been to French victims of this power were Diderot and Voltaire.)The U.S.Constitution leaders of the Revolution. prohibits such action,granting individuals the right to be brought before a court of gove The challenge facing the Framers of the Constitution was how to control the under a writ of habens corpus for a judgment as to the legality of their its authority coercive force of govemment.Fundamentally,government is based on the use imprisonment.The Constitution also prohibits bills of attainder (legislative to compel people to behave of physical force.The German sociologist Max Weber noted that government is trials)and forbids Congress to enact ex post facto laws,under which citizens in certain ways.The Framers recognized this fact,and also defined by its "monopoly of the legitimate use of physical force within a given could be prosecuted for acts that were legal at the time they were committed." had a cautious view of territory.Government's unique characteristic is that it alone can legally arrest, human nature,regarding imprison,and even kill the people who break its rules.Force is not the only basis of effective government,but govemment must have a last-resort option of 4m.1904274 coercion if its authority is to prevail.Otherwise,persons could break the taw +The C i inevitably m the an the to a belief in Emited o pre govemment? %nheH,GehSetNt Max Wober. the York:Oxfoed University Pr facto laws and bills of attainder