The Constitution can’t enforce itself.
People often quote Lysander Spooner to make the case that constitutional limits on federal power mean nothing.
“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
But I find a very odd assumption buried in this line of thinking – this idea that the Constitution can or should somehow enforce itself.
Think of it this way – if a person tells you to shut up, you will almost certainly ignore them unless you know they have the ability to actually make you be quiet. Their words mean nothing unless they possess the power to back them up and put them into effect.
Constitutions work the same way. You can’t just wave the document in front of out-of-control government officials or agencies like a red cloth in front of a bull and expect them to simply stop what they’re doing. Without some enforcement mechanism, the Constitution is of little use when it comes to limiting the power of the federal government.
James Madison understood this dynamic. In Federalist #48, he described limits on power in constitutions as mere “parchment barriers.”
“Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.”
In other words, governments won’t adhere to the limits on their own power just because we write them out.
Madison went on to warn about the consequences of relying on parchment barriers.
“The conclusion which I am warranted in drawing from these observations is, that a mere demarkation on parchment of the constitutional limits of the several 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 a letter to Thomas Jefferson regarding the proposal for a Bill of Rights, Madison pointed out that state governments were notorious for ignoring their constitutional constraints.
“Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”
So, does this make the Constitution completely useless?
Of course not.
Madison was suggesting that we need something to back up our words – “some more adequate defense.” In short – the people must enforce their constitutions.
In the American system, the states were intended to serve as the defense. Alexander Hamilton made this very point in Federalist #28.
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
Madison gave us a Blueprint to do this in Federalist #46. He said state action – specifically a refusal to cooperate with officers of the union – would impede federal power even in a single state. When multiple states take action, Madison said it would “create obstructions which the federal government would hardly be willing to encounter.”
The Constitution sets strict limits of federal authority. But it possesses no power on its own. It isn’t a magic parchment. It will not enforce itself. The power of the Constitution begins and ends with us and our willingness to take action when the federal government exercises unwarranted authority. Parchment barriers easily tear. But when enforced by a determined population, they become a solid brick wall restraining government action.
Spooner was right in a sense. The Constitution was powerless to stop the federal government from turning into an all-powerful monster. But don’t blame the Constitution. It’s only ink and parchment. The blame for any constitutional failure falls squarely on our shoulders.
Fortunately, something can be done about it.