On the Constitutional Restraints:a Principle Restriction on the Fundamental Rights of Freedom

In compliance with the legal restraint principle, some essential matters should be regulated by legislation so as to avoid the abusive exercise of administrative power and to ensure the judicial department to make judgments according to law. However, according to the concept of limited government, the legislative power itself needs restraints. In fact, the unconstitutional review is the very system established in constitutional governments to rectify the abusive exercise of legislative power. The transformation from the rule of law to the rule of constitution in China has actually admitted the possibility of abusive legislative power. The constitutional restraint, derived from legal restraint, is a major principle to safeguard people’s fundamental right of freedom. For fear of the tyranny of majority voting and trusting in the limited government, such principle can overcome the defect that people’s fundamental rights, granted by the Constitution on one hand, would be deprived by laws on the other hand.