There is a common tendency among those who doubt the value of the American constitutional system to attack the document on the basis that parchment barriers aren’t enough. Their premise is usually grounded upon the idea that constitutions are powerless to impose any practical limitations on government when effective enforcement is abandoned and civic virtue vanishes.
As it turns out, I agree – and so did many of the American founders. James Madison once wrote that “repeated violations of these parchment barriers have been committed by overbearing majorities in every State.” In The Federalist #48, he added that parchment barriers had done little to stop “the encroaching spirit of power” on their own, and insisted that “some more adequate defense is indispensably necessary” to protect the axioms contained within written constitutions.
In his seminal commentaries on the Constitution, St. George Tucker, the most prominent legal mind of his time, reiterated this truth:
“All governments have a natural tendency towards an increase, and assumption of power; and the administration of the federal government, has too frequently demonstrated, that the people of America are not exempt from this vice in their constitution. We have seen that parchment chains are not sufficient to correct this unhappy propensity; they are, nevertheless, capable of producing the most salutary effects; for, when broken, they warn the people to change those perfidious agents, who dare to violate them.”
When it comes to the binding power of legal documents, the same is true of all contracts. If I enter into an agreement to sell my house to another individual under a specific reimbursement plan, and the buyer refuses to abide by the terms of the deal, such an abandonment of the original contract would allow the buyer to take financial advantage of me. If such a squabble between any two parties is never adjudicated or resolved, this propensity should be a surprise to no one.
Undoubtedly, the same is true of the United States Constitution. After all, the document is a compact between sovereign parties, whereupon the member states agreed to delegate a specific, predefined list of enumerated authority to a general agent. According to Article VII, the Constitution is one “between the States so ratifying the same.” If the general government trespassed on the boundaries of its authority, it is therefore up to the states to resist and enforce the original confines. As James Madison put it in the Report of 1800, there can be “no tribunal, superior to the authority of the parties,” and therefore “the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated.”
All written contracts, whether constitutions or not, are impotent in their ability to bind authorities without some form of enforcement mechanism. Contracts inevitably lose their intrinsic force when they lack teeth.
Even still, some of the same individuals that oppose constitutional government have also taken this argument to another level by suggesting that the same document that is powerless to prevent tyranny is somehow magical enough to establish and encourage a treacherous, leviathan government that knows no bounds. The view has been extended to explain the expansion of the central government under the Constitution – which they argue has expanded the power of the state in copious number of ways because of, not in spite of, the Constitution that now exists.
I think this view is mistaken, and is akin to blaming a business for getting robbed rather than faulting the robber himself, or blaming a window for being broken rather than the one who shattered it. This outlook errs by assailing the defiled rather than the perpetrator of the violation.
In my own perspective, it seems much more evident expansion of government has resulted instead from rampant and continual violations of the Constitution by government perpetrators, not the Constitution itself. This was true from early in the Washington administration onward, where the Judiciary Act of 1789, the Debt Assumption Bill, and Hamilton’s National Bank drew the indignation of detractors. All of these maneuvers were decried by Jeffersonian Republicans on the basis that they violated and undermined the ratified Constitution.
When it comes to constraining government, parchment barriers simply aren’t enough. There’s nothing magic about them, either positively or negatively. Constitutional maxims take rigorous enforcement from a tireless citizenry. In the end, all republican societies will eventually cease to exist when people become indifferent to the precepts of liberty and where no civic virtue remains. This is a natural phenomenon – one that can be observed in all corners of the world, in countries that both do and do not possesses written constitutions.
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