Has the Constitution failed?
Many people think so. This popular quote from Lysander Spooner sums up the thoughts of many.
“But whether the Constitution really is one thing or another, this is certain: either it authorized a government such as ours, or it was powerless to prevent it. In either case, it is unfit to exist.
Opposing the ratification of the Constitution, brutus wrote:
“Constitutions are not so necessary to regulate the conduct of good rulers as to restrain that of bad ones.”
It is quite easy to see that this did not happen. The bad guys have expanded the power of the federal government decade after decade to the point that we now live under the greatest government in history. It is understandable that some people conclude that the Constitution has failed in its primary purpose.
But asking whether the constitution has failed is actually the wrong question. To find the source of the problem, we need to dig a little deeper.
John Dickinson was known as “the Penman of the Revolution” and was the main author of the first draft of the Articles of Confederation. Write under the pseudonym Fabius in favor of the ratification of the Constitution, he wrote:
“A good constitution favors, but does not always produce good administration. [Emphasis added]
Dickinson’s position was that a good constitution is the starting point. This makes it harder for the government to violate your freedom. But that doesn’t mean it will always play out that way. You cannot rely solely on the document itself. Something more is needed to ensure “good administration”.
James Madison made the same point in Federalist #48 when he warned of the inadequacy of “parchment barriers”.
“A mere demarcation on parchment of the constitutional boundaries of the various departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
In other words, you can’t just write words on paper and expect them to stop government from centralizing and consolidating power.
Governor Morris was a key figure in the drafting of the Constitution. Writing in his diary years laterhe expressed a similar sentiment, observing that “considerable men are not fooled by patriotic professions”.
“Nor will they entrust the defense of their freedom to walls of paper.”
He went on to say that these men never believed that the amendments (the Bill of Rights) gave additional security to life, liberty or property.
Discussing peace negotiations with the British in 1782, John Jay also warned against parchment barriers. And he hints at what we really need to control governments.
“He thought that an explicit recognition of our independence in the treaty was very necessary, in order to avoid that we are exposed to other claims. I told him that we should always have our arms in our hands to meet these demands; that I considered mere paper fortifications unimportant. [emphasis added]
All of these founding era figures observed that you cannot rely on mere words written on paper to prevent those in power from exercising or expanding their power.
Securing our rights
The Declaration of Independence asserted that the government’s goal is to “protect our rights”.
“That to guarantee these rights, governments be instituted among men, deriving their just powers from the consent of the governed. »
Given that we live under the greatest government in history and it violates our rights on a daily basis, it is difficult to pretend that we are a free people. In practice, we are a people begging on our knees for permission to be free. Our current situation proves that the government created by the Constitution has completely failed in its most basic role.
But given the warnings of these and many others in the founding generation, we should not be shocked by the failure of the scroll barriers.
St. George Tucker wrote the first systematic commentary on the US Constitution. In View of the United States Constitutionhe pointed out that “all governments have a natural tendency to increase. and empowerment”. He also observed that “the administration of the federal government has too often demonstrated that the American people are not exempt from this vice in their constitution”.
“We have seen that parchment chains are not enough to correct this unfortunate propensity.”
If the words on paper don’t hold the government, how can the government be held?
Like Madison said Federalist #48, “a more adequate defense is essential.” In other words, someone has to impose parchment barriers.
In Federalist #46, Madison gave us the plan. In a word, resist excessive power.
Specifically, Madison called for “refusal to cooperate with union leaders.” He said if people in one state did it, it would create “very serious obstacles.” And if people from multiple states acted together, Madison said it would “create hurdles that the federal government would be unwilling to encounter.”
Thomas Jefferson echoes this spirit of resistance in A summary view of the rights of British Americasaying, “A free people claim their rights, as arising from the laws of nature, and not as the gift of their chief magistrate.
As already mentioned, many people use Spooner’s quote “let the Constitution be one thing or another” to point out the document’s failure. But in his A defense for fugitive slaves, Spooner described the same basic strategy for enforcing the Constitution as Madison and others in the founding generation. He argued that “the right and physical power of the people to resist injustice” is the only guarantee he has for his freedoms.
“Hardly any government knows no other limit to its power than the endurance of the people.”
He also asserted that “the right of the people, therefore, to resist an unconstitutional law, is absolute and unqualified, from the moment the law is enacted”.
As Roger Sherman argued during the ratification debatesno bill of rights, or document for that matter, “has ever yet bound the supreme power longer than the honeymoon of a newly married couple, unless the rulers are interested in preserving rights.”
The key is to make it “in their interest” to preserve rights by resisting them every time they cross the line – from the moment they cross the line. As Dickinson said in opposition to the Townshend Acts in 1767, we must “oppose a disease in its infancy”. Or, as John Adams later put it, “Nipping the shoots of arbitrary power in the bud is the only maxim that can ever preserve the liberties of any people.”
It is up to the people to love freedom, to demand it, to fight for it, whether the government likes it or not.
This brings us back to Dickinson who argued that it ultimately comes down to the “supreme sovereignty of the people”.
We have the final authority and responsibility.
“It is their duty to watch and their right to see that the Constitution is preserved; or in the Roman phrase on perilous occasions – to ensure that the Republic suffers no harm.
So, if the Constitution has not been preserved, is it the document that has failed to limit itself? Or was it a failure of the people to take humane measures to restrain the actions of the government?
Based on the Founders, former Revolutionaries, and even Spooner, it was the latter.
An unsung supporter of the Constitution written under the pseudonym State Trooper argued that there is nothing in the Constitution itself that “particularly negotiates giving up your liberties”.
“It must be your fault if you become a slave. Men in power can usurp authority under any constitution – and those they rule can oppose their tyranny.” [Emphasis added.]
george washington makes a similar observationsaying “if their citizens should not be completely free and happy, the fault will be entirely theirs”.
This agrees with Spooner’s view.
“The exercise of law is neither a rebellion against the constitution, nor a revolution, it is a maintenance of the constitution itself, by maintaining the government in the constitution. It is also a defense of the natural rights of the people, against thieves and intruders, who attempt to establish their personal authority and power, in opposition to that of the constitution and the people, whom they have been appointed to administer. .
On September 17, 1787, the day the Constitution was signed by delegates to the Philadelphia Convention, Benjamin Franklin gave a speech. His words were strangely prophetic.
“In these feelings, Sir, I agree with this Constitution with all its faults, if they are such; because I believe that a general government is necessary for us, and there is no form of government which cannot be a blessing to the people if well administered, and I further believe that it is likely to to be well administered for a number of years, and can only lead to despotismas other forms have done before him, when the people will be so corrupt that they will need a despotic government, incapable of any other.”
Franklin knew that the government created by the Constitution would fail – not because of any structural flaw. He said the Constitution would be “well administered for many years”. But he predicted it would go off the rails because people wouldn’t do their jobs to keep this government within its bounds. At this point they would become unable to operate under anything other than despotism.
The Constitution has not failed us. We have failed the Constitution.
