Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 2) – Guest Essayist: David Eastman
This essay continues a series exploring briefly why the Constitution is ineffective at constraining federal officials today, and highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints, both of which claim support from the Constitution and America’s Founding Fathers.
The Constitution in Tatters
As a document setting effective limits on the power of the federal government, the Constitution today lies tattered and worn, each article a testament to a battle lost and a fortification overrun (or bypassed) on the way to the consolidation of power in Washington. Some beginning students of the Constitution today are perplexed and genuinely wonder how it could be that a document that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” can today have nearly the same effect as if the Framers had instead decided “the powers not delegated to the States by the Constitution will be reserved to the federal government.” Beginning students are particularly prone to reason that if it is simply written in the Constitution, and the Constitution is the supreme law of the land, it must be so, and that’s all there is to it.
Admittedly, there is a certain force to this line of reasoning. However, the Framers were under no such illusions. The Federalist Papers offer us a picture of the amount of trust they placed in a written constitution alone to restrain our nation’s officials:
“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…” — 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.” —Federalist #48
“…nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.” — Federalist #25
“…mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights.” — Federalist #49
As the Constitutional Convention ended and delegates filed out of Independence Hall in 1787, Elizabeth Willing Powel asked Benjamin Franklin what type of government the convention had given us. His aphorism: “A republic – if you can keep it” was not an idle quip. The Constitution was not designed to make liberty and self government easy, but simply to make it possible. That was the miracle that the Framers had commended to the hand of Providence.
Fast forward to today. The Constitution hasn’t changed much, but the way we look at it has. In a time of relative prosperity, when individuals today can obtain insurance for nearly every type of human endeavor, the Constitution stands as something of an oddity. When we as Americans look around for an insurance policy against abuse of power in government, the Constitution is the best we’ve got—but as an insurance package it is woefully inadequate, and always has been. The Framers never contemplated that one could purchase insurance for the rights and freedoms that we have long treasured as Americans, nor did they think of the Constitution as a self-sufficient automated defense system against government abuse. Contrary to the expectations of a languid public, they did not intend for it to stand as a Maginot Line to intimidate and ward off future advances upon liberty. No mere words on parchment are capable of such a feat because no document can itself contain the moral reasoning with which it will be interpreted, or possess the means of its own defense when the document itself comes under attack.[i]
Thinking of the Constitution as an automated missile defense system may have a certain appeal today in that it puts the responsibility for guarding liberty, not on average Americans, but instead on a much smaller number of experts whose role is to service and provide maintenance for the weapons system. Let there be no doubt—those who labor to uphold the Constitution in the courts (domestically), and in the military (abroad), are worthy of our admiration, but the task of upholding the Constitution is far too large and demanding an endeavor to be assigned only to judges and those in the military. It was not only judges and members of the military that President John Adams was addressing when he declared:
Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it. If you do not, I shall repent in Heaven, that I ever took half the Pains to preserve it.
Our Constitution and its carefully designed checks and balances are essential to liberty, but just as indispensable are the efforts of Americans like yourself—members of the present generation— who know the Constitution and stand ready to defend it and the moral reasoning that undergirds it. The careful arrangement of checks, balances and limits in the Constitution cannot guard against encroachment of those limits any more than an oath to preserve, protect and defend the Constitution can compel the person taking that oath to honor it. We occasionally remember Lord Acton’s charge that “all power tends to corrupt; absolute power corrupts absolutely”, but we all too often forget his equally timeless charge that “Liberty…is the delicate fruit of a mature civilization…” When and where it does exist, it does so only at great effort and against all odds. The odds against liberty are very great today, but—in truth—they always have been. The creation of the Constitution did not change that. Likewise, the failure of the Constitution to restrain encroachments through written parchment barriers did not change them either. Benjamin Franklin did not look to the Constitution to “keep” the Republic. He looked to the present generation, just as John Adams looked ahead to posterity. Instead of thinking of the Constitution passively, as a shield against abuses of power in government, we must learn to think of it actively, as a battlefield—and us upon it.
David Eastman is a graduate of West Point and a former Captain in the United States Army. He has served at all levels of US government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He studied jurisprudence under Sir David Yardley at the University of Oxford and is a former Lincoln Fellow with the Claremont Institute for the Study of Statesmanship and Political Philosophy, and a John Jay Fellow with the John Jay Institute for Faith, Society and Law. He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of Alaska’s future generations. He lives with his family in Wasilla, Alaska.
[i] “The teaching that cannot finally be evaded then is that, even with the guidance of the Constitution, even with some of the principles contained there, imparting a useful discipline, casting up warnings, the decisive grounds of judgment must be found elsewhere, outside the text. They will have to be found, even yet, in those substantive moral principles that are not contained in the Constitution—and could never be entirely contained there. The Constitution remains as a vital framework, but it is evident that even many lawyers and jurists have forgotten the moral reasoning behind its articles and clauses. And for those of us who collaborate in the Claremont Review that project forms, for us, steady work.”
Hadley Arkes, “The Mirage of Enumerated Powers”, Claremont Review of Books (June 6, 2011).
Click Here to Read More Essays From This Year’s 90 Day Study!