Is Limited Government Possible?

By Robert H.

I'm not sure many non-lawyers give much thought to the above question, but think about it: the American government is, formally and officially, one of unlimited powers.  If you can get a constitutional amendment passed, you can do anything.* Them's the rules.

For other governments, this is not true.  The German Basic Law has an eternity clause which says that human dignity is inviolable, human rights are great, and this clause can never ever be amended or changed.  Them's their rules.

Now this is a big formal difference, but is it a big practical difference?  And even if it is, does this track what we mean by "limited government?"  For example, when Americans say they want a more limited government, do they mean they want an eternity clause?  Or do they mean they want more rules that can only be changed with supermajority votes?  And if they mean the latter, why don't they just say, "I want more supermajoritian consensus in government?" and argue for that?  And how do they intend to *get* their limits?  Amending the constitution?  That, again, means they are just advocating for supermajoritarian governance.

So, in contrast to libertarian laymen, libertarian lawyers tend to focus less on what formal "limits" should be placed on government (balanced budget amendment!) and more on what processes, procedures, checks, and government/constitutional structures could lead to smaller government (for example, Ilya Somnin's focus on foot voting).  Questions like this are why.  When you dig down into it, saying "government should be limited" is most meaningful when you are really saying "I want these practical, process checks on government."  Otherwise you're just saying "here's a policy I think is great and everyone should be forced to adopt.  Don't ask me how we'll force the issue."

*Ok, you can't deny a state its equal suffrage in the senate or end slavery before 1808, but come on.