What a Constitution Can, and Can’t, Do

I was at a conference recently on the relationship between constitutionalism and liberty.  There were quite a few very smart and learned people there.  Two things struck me in particular from the conversations we had over several days:  first, how little faith scholars today seem to have in constitutional structures, and, second, how little faith they seem to have in the possibility of human virtue.  I have much more sympathy for the second prejudice than the first, but the conversations in general got me thinking about our current constitutional predicament and what it says about the relationships between character and political mechanics.

People who know a bit about our constitutional foundations generally know something of The Federalist Papers—the newspaper articles written by Alexander Hamilton, James Madison, and John Jay, intended to sway public opinion during the debates over ratification of our frame of government.  Of the 85 essays brought together as The Federalist Papers, people are most likely to remember a bit about the 10th essay, on the dangers of political factions, and the 51st, about how our constitution would keep legislative, executive, and judicial powers separated through the use of various “checks and balances.”  Those mechanisms would, for example, involve the President in legislation by giving him the power to veto Congress’ bills, subject to a two-thirds vote to override that veto.  The idea was that members of each branch would want to defend their own powers and prerogatives—turf, really—and so ambition would be made to counteract ambition.

All but the most starry eyed utopians tend to appreciate Madison’s observation in Federalist 51 that men are not angels and that, therefore, a government that would first control the governed and then control itself, must take into account selfish concern among those in the government for their own power.  What often gets overlooked is that Madison referred to these mechanisms as only “auxiliary precautions.”  That is, they were supposed to supplement the most important check on governmental power—reliance on the people.  Some (particularly on the left hand of the political spectrum) have taken any reference to reliance on the people to mean that we should recognize the “sovereignty” of the people—meaning that the people should receive the government, and as much government as, they demand.  But Madison meant something different, and I think it gets to the heart of what once made our constitution work, and why it really doesn’t work any longer.

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“Sovereignty” is a word used quite a bit by lawyers and political scientists who want to emphasize that there is such a thing as absolute power.  If someone who works for the government hurts you, you can only sue if, how, and for an amount the government says you can.  Why?  Because the government has what we call “sovereign immunity.”  Nobody gets to sue the sovereign unless it says they can.  Political theorists for centuries have written about “the sovereign”—meaning kings, parliaments or a mythical “people”—because they have felt that there must be someone, somewhere, who is in charge, responsible for deciding what the government should do and how, and making it stick; and, the saying goes, if someone can tell you “no, you can’t do that,” then you don’t really have the power to do what needs doing.

This view of absolute authority as logical necessity is quite neat and quite wrong—it assumes an iron logic in human affairs that belies reality, which is why we call it “ideology”—the attempt to impose a second, false reality on the actual, lived reality of real, live people.  What’s more, to actually have an earthly sovereign is a most dangerous thing.  Most Christians recognize that even God isn’t truly “sovereign” in this sense because, being all loving and all wise as well as all powerful, he chooses to rule, with only miraculous exceptions, according to settled laws we can know.  This is wise and good because we wouldn’t be able to lead decent lives if, for example, we couldn’t count on water flowing downhill instead of up.  And the same goes for our political lives.  If we can’t count on the government to rule by law instead of mere will or caprice we won’t be able to build decent lives.  That’s why, for example, kings or federal governments that begin taking away our property to simply give it to somebody else (even if they pay us something for it and claim it is for the “public good”) undermine freedom and any decent life.  If you can’t even count on your property being yours from one day to the next, planning and building a meaningful life become hopeless.

Constitutions are important to freedom because they both establish a particular frame of government (“there shall be a congress, elected in x way, with power to pass laws on y subjects,” and so on) and constrain the government they establish.  Constrain it how?  By channeling its powers, saying, in essence “you can only do these things in these ways.”  Constitutions subject the government to the rule of law.  They make it so that all of us can count on laws only being passed in a given way, and there only being laws relating to certain subjects.  In our constitutional system, the federal government in particular was supposed to be restricted in the topics on which it could legislate (for example, in the commercial area, only where commerce between the states is involved).  States could do much more, if their own constitutions so allowed, but the federal government was restricted to exercising only specifically enumerated powers.

But even the best constitution is meaningless if it isn’t actually followed in practice.  Despite the framers’ realism regarding the limits of human nature, they recognized that our federal system, like free governments in general, must rely on the virtue of the people in certain basic but crucial ways.  Least discussed was the people’s virtuous desire for self-government.  I don’t mean that in the contemporary sense of getting to vote every few years for who governs, but in the older, more meaningful sense of being left in our states, localities, and local groups to run our own lives.  This was crucial to free government because it limited the demands we placed on the federal government.  People who realize that government “assistance” comes at the cost, not just of taxes (which we assume, wrongly, will be paid by the rich) but of a loss of liberty, won’t demand a slew of federal programs.  Realist that he was, Madison in Federalist 10 assumed that particular factions would demand special favors from the government.  But he also assumed that there would be enough virtuous and disinterested people and groups to balance out and prevent these factions from getting the government to do their bidding.

A crucial element in preventing factions from getting their way, however, was the formal structure of our constitution.  The danger to be prevented was, of course, tyranny—of whatever kind.  Forms of power—of making, executing, and interpreting laws—had to be kept separate lest one person or group have absolute power to act without constraint.  Separation of powers and the checks and balances between branches and within the legislative branch, also kept any one group from being able to force through its selfish and overbearing plans for legislation.  What later liberals would call the “deadlock of democracy” was an intentional system in which deliberation within and between branches of the legislature and branches of government would allow representatives not directly interested in a piece of legislation to determine whether it was in the public interest.

Of course, the massive failure of virtue in the United States was on the part of the people, who now demand that the government take care of them in their health, education, and welfare, rather than defend them as they take care of themselves, including in their more local groups and governments.  But this massive failure was aided in no small measure by a loss of virtue on the part of our governors.  From the early days of the republic members of Congress have proposed legislation that would help particular individuals or groups.  Some of the legislation became law.  What’s more, some of it clearly was decent and honorable in its intentions.  But most of it did not become law because most of those in positions of political power either didn’t want it for purely political reasons or recognized that it was not in the public interest.  And a major reason much legislation aimed at protecting the weak among us is not in the public interest—despite its honorable motivation and despite the fact that as individuals, communities and perhaps even states we should look to addressing the problems—is the need to defend the formal structures of our constitutional government.  For once it is established that the federal government is responsible for everyone’s welfare, free, limited government is impossible.

Most people blame (or credit) the Franklin Roosevelt administration for overcoming our constitutional system of separated powers in the name of addressing economic emergencies.  It was only a matter of time, after that, before life’s every contingency became an emergency the federal government was expected to address and protect us against.  But emergencies, while dangerous, are not the critical point.  The critical point is respect for the constitution.  And that was undermined decades before the Great Depression (and arguably was one of its causes) because of those “progressives” who demanded that we break the “deadlock of democracy” and move the nation forward toward their dream land of unity and prosperity.  The people’s will should be made law, they claimed, quickly and efficiently because the people are “sovereign.”  This logic has been playing out now for a century and is only now reaching fruition in a new social democracy.

In a small but extremely important book called Congress: Keystone of the Washington Establishment, Morris P. Fiorina explained, well over twenty years ago, the new dynamic of American politics.  Congress passes broad bits of “legislation” (it’s too vague to really qualify as law) that decree the government’s intention to do things like establish safety in the workplace.  The legislation then leaves it to various government departments to make the actual rules (called “regulations” but functioning as if they were laws) intended to make our workplaces safe.  Inevitably, the regulations and the regulators get things wrong.  This is fine by members of Congress, who then hold hearings or simply make particular demands on particular bureaucrats to take care of their constituents’ needs.  So members of Congress get to be heroes twice, “guaranteeing” things like safe work places, then defending people from bad bureaucrats, even as bureaucrats get to remain more or less in power.

It’s all nice and neat.  Except that we no longer are ruled by law, the constitution no longer binds the governors, and our freedom has been lost in pursuit of government programs making us “secure” in our fettered lives.  My point?  A constitution has to have formal structures and requirements if it is to do its job of imposing the rule of law on people in positions of power.  And people in positions of power need to be restrained by the rule of law.  But for these formal structures to work, both people and the governors they choose must recognize that they are important.  That means the people must demand less of the government and demand that those they support for public office demand more self restraint from themselves.  The alternative, as we are finding to our shame, is the loss of constitutional, free government and of our dignity as free men and women.

Editor’s note: This essay first appeared April 2, 2013 on The Imaginative Conservative website and is reprinted with permission.


  • Bruce Frohnen

    Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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