The Constitution was supposed to create a general government limited to a few specific listed powers. Instead, we ended up with the biggest most powerful government in the history of the world.
What happened?
And who’s to blame?
James Madison outlined the limited scope of federal authority in Federalist #45, writing that its powers would be “few and defined.” The powers left to the state governments and the people themselves would be “numerous and indefinite.”
Madison went on to explain that federal power “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Today, Madison’s description has been flipped on its head. The federal government reaches into every nook and cranny of our lives. It even tells us how much water we can have in our toilet and what kind of health insurance we must carry. Meanwhile, the states have been turned into administrative wards of the federal government with virtually no independence or authority.
Things clearly didn’t go as Madison and other supporters of the Constitution envisioned.
A lot of people blame the Constitution itself, citing the famous quote by abolitionist Lysander Spooner, who wrote that the Constitution either authorized the government we got or it was powerless to stop it and is therefore “unfit to exist.”
But even at the time of the founding, people generally understood that constitutions were powerless to restrain a government. After all, they’re just words on paper, or as James Madison and others described them, “parchment barriers.”
Madison warned against relying on parchment barriers alone in Federalist #48.
“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.”
Parchment barriers need enforcement.
And that’s where we’ve had a breakdown.
John Dickinson was known as the penman of the Revolution. He also wrote in support of ratifying the Constitution under the penname Fabius. In the third Fabius essay, Dickinson tells us exactly who we should blame for this runaway federal government.
Just as Madison did, Dickinson argued that the authority of the federal government would be limited under the proposed Constitution, writing, “In short, the government of each state is, and is to be, sovereign and supreme in all matters that relate to each state only. It is to be subordinate barely in those matters that relate to the whole.” [Emphasis added]
And he tells us exactly who to blame if it doesn’t work out that way.
“It will be their own faults if the several states suffer the federal sovereignty to interfere in things of their respective jurisdictions.” [Emphasis added]
Supporters of ratification weren’t counting on the Constitution to keep the federal government within its limits. They were counting on the states (and the people) to enforce the Constitution and keep the federal government within its proper sphere.
In fact, Dickinson was convinced that the states would do their jobs.
“An instance of such interference with regard to any single state, will be a dangerous precedent as to all, and therefore will be guarded against by all, as the trustees or servants of the several states will not dare, if they retain their sense, so to violate the independent sovereignty of their respective states.” [Emphasis added]
Dickinson expected that the states would guard their sovereignty and resist if the federal government invaded it. Roger Sheman held similar expectations, writing’ that “when the government of the united (sic) States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.” [Emphasis added]
During the Massachusetts ratifying convention, delegate Fisher Ames expressed a similar viewpoint, asserting that the states were “the best security” against the subversion of the Constitution.
“The State Governments represent the wishes and feelings, and the local interests of the people. They are the safeguard and ornament of the Constitution; they will protect the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”
James Madison even provided a blueprint for resisting federal overreach in Federalist #46.
In a nutshell, we can’t blame the Constitution for not enforcing itself. And the mechanism for preserving the Constitution and keeping the federal government within its limits was in place from the beginning. The states didn’t do their job.
But when you get to the root of things, there is another culprit.
The people.
After all, the states are merely a society of people. And it’s the people’s job to guard their own liberty.
In his Fabius IV, Dickinson revisited the idea of holding government in check. He noted that “a good constitution promotes, but not always produces a good administration” but that “a bad administration may take place.”
“What is then to be done?” Dickinson asked.
His answer was that it’s ultimately up to the “supreme sovereignty of the people.”
“IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED. Or in the Roman phrase on perilous occasions—TO PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.[Emphasis original]
And that brings us back to Spooner.
In response to the Fugitive Slave Act of 1850, he penned a pamphlet titled “A Defence for Fugitive Slaves.” He argued that the “right and the physical power of the people to resist injustice” are the only security they have for their liberties.
“Practically no government knows any limit to its power but 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.”
Ultimately, we can’t count on the federal government to limit itself and parchment barriers are insufficient. And we can’t count on state governments to do their job checking the feds. It’s up to the people to resist and stop submitting to illegitimate federal actions. As John Hancock put it, “the powers reserved by the people render them secure.”
But as James Otis Jr. warned, “So long as people will submit to arbitrary measures, so long will they find masters.”
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