Has The Constitution Failed?
By KrisAnne Hall, JD
There is an argument that seems to resurface repeatedly that the Constitution has failed and as a result, American politics are out of control. I have seen these arguments posited by journalists, professors, and Supreme Court justices. The standard argument declares two failed intentions for the Constitution:
The Constitution was intended to 1) limit the power of government over the citizenry 2) limit the power of each branch of government. However, the purpose of the Constitution as expressed by the drafters and ratifiers is not to “limit” the central government but to “define its limits.” And that distinction is critical. Much like a stop sign defines the place at which a vehicle must stop, yet no stop sign has ever stopped a vehicle.
James Madison, historically referred to as The Father of the Constitution, described these boundaries in Federalist #45:
“The powers delegated by the proposed Constitution to the federal government are few and defined…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.”
Madison knowing that it is impossible for the Constitution itself to limit anything at all, posits this rhetorical question:
“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?”
Madison refers to the Constitution as a “parchment barrier,” a mechanism of mere ink and paper. He knew that the Constitution had no power of its own and therefore could not limit the power of the government over the citizenry. The Constitution could not prevent the branches of government from expanding their own power beyond the grant of the document. The Constitution could not prevent one branch from taking power from other branches. If it could, then we could rightly blame the document for allowing what we see today.
John Adams, as he was addressing the Massachusetts Militia in 1798, knew like Madison that this was not so. Adams understood clearly where the blame would lie and that it would not be with an inanimate parchment which had the simple task of directing animate actors where to stop:
“We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”
Adams was warning that unless the people are moral and constrained by a higher moral authority, the nature of the Constitution would not and indeed COULD NOT be an obstacle, nor any limit at all, if those in government wanted to ignore it for their own power, greed, or ambitions. Adams is alluding to the real and tangible limit to government, and its not the words on a piece of paper, it is the PEOPLE collectively who have chosen not to adhere to those words. If we look out and see failure in the halls of government and across the political landscape, it is not the Constitution that failed us, it is we who have failed the Constitution. No rational person blames a clearly-printed, well-placed stop sign for a driver who fails to press the brake pedal.
In the “Anti-federalist” document titled Letter From a Federal Farmer to the Republican #6, we see that the drafters of the Constitution expected the “jealousy and vigilance” of the People to be the guardians and limits of government power, as the “strongest guard against the abuses of power.” Alexander Hamilton wrote in Federalist #33:
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people… must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution…”
It ought to be obvious by now it is not the Constitution that has failed, it is the People who have failed to maintain the limited and defined federal government the Constitution created. Why do corporate lobbyist control our federal representatives, senators, and presidents? Because the people have failed to control their representatives and the representatives, lacking knowledge and virtue, refuse to be controlled. The people have failed to enforce the limits of the Constitution and have failed to be their own lobbyists for Liberty and Individual Rights.
Accusations can be found that say it is the Constitution’s fault that the “Federal Reserve has the power to debauch the nation’s currency and reward the wealthy via issuing new currency and buying Treasure bonds in whatever sums it deems necessary…” Indeed the Federal Reserve engages in such fraud but NO the Constitution did not give such Federal Power to this private cartel. Not only does the Constitution give no such authority to the so-called Federal Reserve Bank; it gives no authority to the Legislative, Executive, or Judicial Branches to create a Federal Reserve or to abdicate their own power to a private banking cabal who is neither “federal,” a “reserve” nor a “bank.”
The Power to create money is delegated solely to the Legislative Branch through Article 1, Section 8, Clause 5:
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
The power to establish debt for the Union is also delegated exclusively to the Legislative Branch via Article 1, Section 8, Clause 2; "To borrow Money on the credit of the United States." No one person can lay one credible claim against the Constitution for these actions. The entire corruption of the monetary system in American lays completely at the feet of the Legislative Branch, supported by the unconstitutional activism of the Supreme Court and the outside interests to which they bow.
Others fault the Constitution for the misconduct of the numerous alphabet agencies in the Executive Branch. The fact is that Constitution defines a very limited federal government, specifically enumerating its powers and reserving the internal everyday governmental authority to the individual States.
Madison, in Federalist #45, explains to those representatives who will eventually ratify the Constitution the specific limited nature of the federal government and the overriding nature of the powers reserved to the States:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former 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.
What that means for every American is that the overwhelming majority of executive agencies created by legislative acts of Congress are unconstitutionally created, exercising powers stolen by Congress from the states and unlawfully invested in an unauthorized executive agency. Americans feel these federal agencies are out of control because they are! They are not even permitted to exist at the federal level according to the creation and design of our Constitution and the evidence for this fact is incontrovertible and ubiquitous in the writings of the drafters of the Constitution. Here are just a few:
- …the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. Hamilton Federalist # 83
- “I, sir, have always conceived -- I believe those who proposed the Constitution conceived -- it is still more fully known, and more material to observe, that those who ratified the Constitution conceived -- that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers -- but a limited government, tied down to the specified powers, which explain and define the general terms.”James Madison, 1792
- The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. James Madison, Federalist #45
The Constitution creates the federal government and then specifically enumerates every power it is permitted to exercise; nothing more, nothing less. Any power exercised that is not specifically enumerated is not exercised because the Constitution allows it, but is exercised in spite of the Constitutions specific intentions to the contrary. The Constitution can not stop people, agencies, regulations, or laws contrary to its intent, any more than a stop sign can halt a speeding motorist. Like the traffic notice planted by the roadside, It has no sword, no will, and no power of its own. The Constitution was built to be a written reminder to the people of the limited nature of government and the standard by which the PEOPLE must hold their representatives.
Even the corruption of the Judiciary is blamed on the Constitution, but again, the Constitution can carry no blame. The modern “ruling” nature of the judiciary is outside the intent and authority of the Constitution. The fact that modern society refers to judicial opinions as “the law of the land” or gives them the “force of law” is not a creation of the Constitution, but an aberration of the Constitution’s very limited delegation of judicial authority. Hamilton wrote in Federalist #78 that the judiciary was designed to be the weakest of the three branches of government:
“The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever... It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two…”
Thomas Jefferson, writing to Spencer Roane in 1819, explained that to claim the judiciary as the ultimate authority to “interpret” or “define” the terms of the Constitution, would transform the Constitution into “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”
If the Constitutional structure has been completely reversed, how is that the fault of the Constitution? It is not Constitution’s responsibility to limit the government, nor can we expect the government to limit itself. The responsibility to limit and control the federal government has always rested, from conception to ratification of the Constitution and beyond, upon the “jealousy and vigilance” of the people.
Elections are not corrupted because the Constitution failed. Politicians are not immoral and dishonest because the Constitution failed. We do not have trillions of dollars in debt because the Constitution failed. We are not in a perpetual state of war because the Constitution failed. Our rights and liberties are not being trampled upon by agencies and agents because the Constitution failed. The argument that the unconstitutional acts of people in government are the fault of the Constitution is the same errant logic that drives people to say that guns are the cause of crime, deaths, murder, and suicide. When we blame the Constitution, the real culprits - the people and their politicians, can escape accountability.
The Constitution cannot fail. The Constitution cannot succeed. The Constitution is an inanimate object, mere ink and paper. When the government fails to follow the Law of the Land and exceeds its limited and defined boundaries as established within the Constitution, it is not the document’s fault, it is the fault of the people who do not require their government to be limited and defined by the document that created it. Samuel Adams summed it up quite precisely when he wrote;
“No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their Manners, they will sink under their own weight without the Aid of foreign Invaders.”
If we want to restore proper government, we do not need to change or get rid of the Constitution. We must end the ignorance of the people regarding the limited nature of their government and their personal responsibility to confine that government within its designed limited capacity. We don’t have a stop sign problem, we have a problem hitting the brakes.