The Real Enforcement Mechanism for the Constitution
By: Michael Boldin
Almost everything people learn about how the Constitution is supposed to be enforced is wrong.
As a result, we live under the largest government in history, and it’s only going to keep getting worse without a huge change of course.
CONSTITUTIONS DON’T ENFORCE THEMSELVES
First, in what should be an obvious point, words on paper – even if they are the best bunch of words known to humankind – don’t enforce themselves.
They never did, and they never will.
The founding generation understood this. That’s why James Madison referred to constitutions as “parchment barriers” in Federalist #48.
“A mere demarcation 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.“
Roger Sherman made a similar observation, recognizing that people with power don’t respect rights just because somebody writes them on paper.
“No bill of rights ever yet bound the supreme power longer than the honey moon of a new married couple, unless the rulers were interested in preserving the rights.“
That doesn’t mean that a constitution – written rules for government – is worthless. As John Dickinson noted, “A good constitution promotes, but not always produces a good ad-ministration.”
But waving a document at a government that wants to expand power isn’t a good way to stop it. Something else is essential.
FEDERAL COURTS AREN’T THE SOLUTION
When the federal government goes beyond its constitutional limits, one of the first things most people do is call for a lawsuit in the federal courts. And, even if they disagree with the result, they generally take the position that the Constitution means what the Supreme Court tells us it means – until it changes its mind.
But James Madison pointed out that the judiciary is just as fallible as the other two branches and could “exercise or sanction dangerous powers beyond the grant of the Constitution.”
Despite what many legal experts want you to believe, the Constitution means what the Constitution means – even when the federal courts get it wrong.
And yet, most people defer to the federal courts on all constitutional questions. In essence, they believe that the federal government serves as the final judge over the limits of federal power under the Constitution.
This couldn’t be more wrong.
In a letter to William Charles Jarvis, Thomas Jefferson warned that treating the federal courts as “the ultimate arbiters of all constitutional questions” was a “dangerous doctrine” and would “place us under the despotism of an Oligarchy.”
As Thomas Jefferson observed in the Kentucky Resolutions of 1798, the Constitution itself is supreme, not the opinion of the Supreme Court – or any branch of the federal government:
“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.“
Like Jefferson, Lysander Spooner also recognized that if all federal acts are considered constitutional until the federal government itself decides that it made a mistake – then the government really has unlimited power.
“To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,—for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the Constitution, and giving to the government unlimited power.”
The bottom line is the federal courts are part of the federal government, and you shouldn’t trust the federal government to limit itself.
VOTE THE BUMS OUT ISN’T EITHER
Arguably the most widespread and popular strategy for attempting to enforce the Constitution is to “vote the bums out.” In short, replace the people who violate their Oath with new people who will follow it.
While this sounds laudable on the surface, the problem is we keep getting new bums.
And, if we’re to believe Thomas Jefferson at all, this isn’t even the right strategy.
“In cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy.”
For Jefferson, “vote the bums out” is only for those situations where you don’t like the policies being pursued – but they’re still within the bounds of the Constitution.
And if you’ve read this far, it’s probably safe to assume you recognize that we’re nowhere close to that kind of situation today.
For everything else? Jefferson had some strategy for that as well – covered below.
But first, it should be obvious that this approach has been a complete and utter failure, otherwise, government wouldn’t keep growing – as it has – no matter how many times we’ve had the “most important election in our lifetime.”
And even if you could prove this “vote the bums out” strategy hasn’t been a complete and utter failure for generations, Lysander Spooner still shreds the approach on theoretical grounds.
“Suffrage is equally powerless and unreliable. It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes.“
Additionally, Spooner notes that even if you can vote bad people out of office, there is no guarantee you’ll get any improvement with their replacements.
Why not?
Well, if the people chose the first set of tyrants, what makes anyone think they’ll suddenly choose good people the next time?
“Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants.“
Going further, even if the voters manage to pick “good people,” there is no guarantee they will stay “good people.” After all, power corrupts, and power always seeks to expand.
As George Mason observed, “Those who have power in their hands will not give it up while they can retain it. On the contrary, we know they will always, when they can, rather increase it.”
WHAT ABOUT AMENDING THE CONSTITUTION?
Recognizing that the largest government in history is not going to be stopped through any process that relies on waiting for the federal government to limit itself, some people believe they can enforce the Constitution through the amendment process, utilizing a convention of states to bypass the federal government altogether.
In Federalist 50, James Madison vehemently opposed using the amendment process for “ENFORCING the Constitution, by keeping the several departments of power within their due bounds” – as opposed to using it for “ALTERING the Constitution itself.” [All caps in original]
That bears repeating.
Madison was objecting to the use of the amendment process as an enforcement mechanism, but wasn’t addressing it here as a tool to reduce or expand the powers delegated to the federal government in the constitution.
Madison presented a two-fold argument against using this tool for enforcement:
1 – Since a convention takes a long time, it has almost no chance of stopping “a hundred or two hundred” legislators who are “eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it”
2 – Even if you could take actions that could enforce the Constitution this way, it would require the abuses of the Constitution and liberty to be in place for a long time first – making them much harder to eliminate.
“Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years?
“In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated.“
Despite missing the mark on using an amendments convention as an enforcement mechanism, supporters of this approach are still right on the money in understanding that it’s the people and the states that have to enforce the constitution – whether the federal government likes it, or not.
THE REAL ENFORCEMENT MECHANISM
As noted above, John Dickinson wrote that a good constitution doesn’t guarantee a good administration – it can only promote it.
But the “Penman of the American Revolution,” didn’t just leave us hanging. Instead, he followed with the essential question:
“But, notwithstanding, it must be granted, that a bad administration may take place. What is then to be done?”
The answer, he told us, “is instantly found” – not after everything else has been tried and failed – “before the supreme sovereignty of the people.”
For the founding generation, sovereignty meant “final authority.”
Dickinson continued (All caps in the original):
“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.“
This is similar to what James Madison wrote when discussing “states,” which he defined in this context as “the people composing those political societies, in their highest sovereign capacity.”
Madison continued:
“The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated.”
In short, the real enforcement mechanism for the Constitution is the people of the several states.
Mercy Otis Warren put it this way:
“The origin of all power is in the people, and they have an incontestible right to check the creatures of their own creation.”
WHAT MUST BE DONE
Thomas Jefferson’s “vote the bums out” advice noted above is worth repeating:
“In cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy.”
For everything else? “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy“
Jefferson called this a “natural right.”
“Every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.“
Even Alexander Hamilton agreed on principle and emphasized this structure inherent in the system in Federalist No. 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.“
…
“They can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.“
During the Massachusetts ratifying convention, Theophilus Parsons also pointed to a check on federal power above any “parchment check.”
“But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it.“
Hamilton continued this line of thinking in Federalist No. 33:
“It will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
St. George Tucker reiterated this essential principle:
“Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.”
And how does one treat “acts of usurpation?”
Tucker continued:
“The people are not only not bound by them, but the several departments and officers of the governments, both federal, and state, are bound by oath to oppose them; for, being bound by oath to support the constitution, they must violate that oath, whenever they give their sanction, by obedience, or otherwise, to any unconstitutional act of any department of the government.”
In short, the people are not bound to obey – and the states are duty-bound to oppose.
Roger Sherman explained:
“All acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States.“
From this simple statement – we get 4 essential points
- Governments are going do what governments do – violate rules give to them
- Just telling them to stop doesn’t work – they’ll still try to enforce their usurpations
- In the federal system – when a bunch of states refuse to go along – the feds lack the resources to enforce
- But most important – that requires the people to refuse to comply – because there’s nothing to enforce if the people just obey.
Writing in Federalist No. 46 just a few weeks later, James Madison advised the same. He gave us a strategy of how to stop federal programs without waiting on the feds to somehow, magically limit their own power.
He specifically advised using “state legislative devices,” non-compliance by the people, and “a refusal to cooperate with officers of the Union.”
Like Sherman, Madison also noted that if a number of states took this same approach, it would create an insurmountable obstacle for the federal government.
James Iredell hammered this home during the North Carolina ratifying convention.
“The only resource against usurpation is the inherent right of the people to prevent its exercise.“
The cold, hard truth is there is only one way to keep government in check.
It’s ultimately up to the people of the several states to protect and defend their own Constitution and their own liberty – whether the government wants them to, or not.
At the height of the Revolution, Samuel Adams summed it up perfectly:
“The truth is, All might be free if they valued freedom, and defended it as they ought.“
Since, as Dickinson and others noted that it’s not just a good idea for the people and the states to stop federal usurpations of power – but a duty – one can certainly understand why Samuel Adams would hold in contempt those who fall to tyranny:
“If therefore a people will not be free; if they have not virtue enough to maintain their liberty against a presumptuous invader, they deserve no pity, and are to be treated with contempt and ignominy.“
Turning things around from the largest government in history to an actual “land of the free” isn’t going to be quick or easy. As Thomas Jefferson put it, “We are not to expect to be translated from despotism to liberty, in a feather-bed.”
The first step is recognizing that going to the federal government in the hopes of convincing the government to stop doing what the government was never supposed to do in the first place only guarantees things will keep getting worse.
The founders told us the path forward – it’s up to the people to learn how to get it done.
As St. George Tucker put it:
“The acquiescence of the people of a state under any usurped authority for any length of time, can never deprive them of the right of resuming the sovereign power into their own hands, whenever they think fit, or are able to do so, since that right is perfectly unalienable.”
