Even the best constitution is meaningless if it isn’t actually followed in practice

What a Constitution Can, and Can’t, Do

by Bruce Frohnen

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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