Can a constitution put limits on a government?


John C. Calhoun, was one of North America’s first political theorists and he wrote about the inability of a constitution to limit government. He points out that no document, not even if written on a hallowed piece of parchment, has the inherent power to bind officials to read it correctly or follow its strictures. As time goes on it gets even weaker in this ability as language changes and governments build up their power.

In his A Disquisition on Government, Calhoun explains the problem:

A written constitution certainly has many and considerable advantages, but it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government, they will… be in favor of the powers granted by the constitution and opposed to the restrictions intended to limit them. As the major and dominant parties, they will have no need of these restrictions for their protection. …

The minor or weaker party on the contrary, would take the opposite direction and regard them as essential to their protection against the dominant party. … But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be a strict construction of the constitution. … To this the major party would oppose a liberal construction—one which would give to the words of the grant the broadest meaning of which they were susceptible. It would then be construction against construction—the one to contract and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. … The end of the contest would be the subversion of the constitution… the restrictions would ultimately be annulled and the government be converted into one of unlimited powers.

Nor would the division of government into separate and, as it regards each other, independent departments prevent this result… as each and all the departments—and, of course, the entire government—would be under the control of the numerical majority, it is too clear to require explanation that a mere distribution of its powers among its agents or representatives could do little or nothing to counteract its tendency to oppression and abuse of power.

The weakness of limits on governmental power guarantee that a state will grow in power. After all, why would you expect a criminal gang like the nation-state to honor its own rules and founding documents? It is the nature of the government of a nation-state to grow in power and control day after day until it becomes a tyranny. The U.S. government is becoming a Dystopian nightmare — a vast police state of unimaginable brutality and power. Every village in the land has a SWAT team now! This was never the intention of the document called the U.S. Constitution — or at least that is what the authors claimed back then.

When I was young there was a military draft in the U.S. in spite of the fact that the 13th Amendment to the Constitution states:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Back in the early 20th century there was a court case over this issue during WWI. The draftees challenged conscription on the grounds that being forced to serve in the military was a form of involuntary servitude and hence is clearly unconstitutional under the 13th Amendment. The U.S. Supreme Court ruled on the question in Butler v Perry (240 US 328 [1916]) thusly:

The 13th Amendment introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.

The U.S. Supreme court gets to “interpret” the words of the written document in whatever manner it so chooses; and hence the words themselves are no barrier to the nation-state doing whatever it pleases to do. While the document might slow the state down in times of great public outcry, there is no protection to be found there. Consider that since 1945 the U.S. has been continually at war and yet the constitution has not been followed in any of those aggressive, illegal, and undeclared wars. What good did the Constitution do in those instances? It is for this reason that those who advocate for a smaller government should place little faith in the power of a “god damn scrap of paper” (the Constitution) to constrain the state. That is true even with brand new amendments or even a whole new Constitution written in the clearest, most modern prose possible. To restrain politicians in their pursuit of power and control is beyond the power of a piece of paper.