Own Our Failures to Uphold the Constitution

See also, The Origins of Our American Creed and The Meaning of Our American Creed

On March 1, 1781, the American people ratified the Articles of Confederation to officially establish the United States of America. This was kind of a big deal then, but it’s not something we celebrate today — remarkably, the birthday of our union doesn’t even merit a calendar entry as a simple reminder of its historical significance.

All for good reason, of course: the Articles of Confederation was an abject failure. The aim of government in America, as expressed in the Declaration of Independence, was to preserve the people’s natural rights to life, liberty, and property. The Articles, however, created a national government that was much too weak to accomplish this end. 

In fact, the Articles really didn’t create a national government; it established a “league of friendship” among the 13 sovereign states. Each state, no matter how large or small, had a single vote in Congress, and a two-thirds majority was needed to pass all laws. Although Congress could enact legislation to manage “the general interests of the United States,” it could do no more. It couldn’t implement or enforce the law, and it couldn’t even collect taxes needed to repay debts accumulated during the Revolutionary War. Due to the feeble nature of this organization, the states often acted in their self-interests, and weakness was projected abroad. In short order, the union was at risk of dissolution.

So in the summer of 1787, the American people sent delegates to a special convention in Philadelphia to address the shortcomings of the Articles. The delegates ultimately decided that, to preserve the union according to their ideals, they’d have to scrap the Articles altogether and construct a new constitution. And so they did. 

Our founding fathers understood that weak national governments in confederacies had historically led to disunion and were therefore incompatible with lasting liberty. But they also knew that the opposite extreme was equally undesirable, for powerful centralized governments were prone to corruption, abuse, and tyranny. Thomas Jefferson wrote, “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or of France, or of the aristocrats of a Venetian Senate.” 

Naturally, when the founders gave force to the federal government under the new Constitution, they were very careful to avoid tipping the scales of power too far toward tyranny. They had no intention to create an overbearing centralized government. Instead, they increased federal power only where necessary for it to perform its limited national functions. James Madison explained: 

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.

This division of power between the federal and state governments was meant to safeguard American liberty by forming “a double security to the people,” according to Alexander Hamilton. He trusted that the people, who would “hold the scales [of power] in their own hands,” would “always take care to preserve the constitutional equilibrium between the general and state governments.” When necessary, the people could augment the power of either government “by throwing themselves into either scale. ... If their rights are invaded by either, they can make use of the other as the instrument of redress.” 

The scales of power are nowhere near in balance today, because in the last century we’ve been seduced by the progressive idea that the federal government, if properly empowered, will better protect and care for us. So we’ve let politicians and judges obliterate all limits in the Constitution to expand the scope of federal power. As a result, we now have a tax code that surpasses 67,000 pages and touches every kind of productive activity, costing Americans at least $225 billion in compliance costs each year. We now have more than 163,000 pages of restrictive federal regulations that govern all sorts of activity and burden Americans with hidden taxes totaling more than $1.75 trillion each year. And we now have a national debt that exceeds $16 trillion, due in large part to unconstitutional social welfare spending that first began during the Progressive Era and now comprises close to 60 percent of the federal budget. 

Our wasteful and domineering government is failing its intended aim to secure our natural rights, just as the Articles of Confederation did so long ago. The difference, of course, is that the Articles failed to secure these rights due to its weak and virtually nonexistent national government, while our omnipotent and omnipresent federal government has become the problem today. 

Importantly, our Constitution is not the reason for the rise of our authoritarian state — after all, it was designed with limits on federal power. Our diminished liberty today results from our long tolerance of illegitimate federal action taken by those abusing their power in government. Thomas Jefferson aptly wrote that “certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights ... yet experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

If we hope to honor the legacy of our founding and correct our country’s current wayward course, then we must own up to our failures in upholding the Constitution and begin enforcing its limits on federal power. This is no easy task, but it can be done — for it has been done before. Let our transition from the Articles of Confederation to the Constitution serve as a reminder to us that, in spite of our failings, we still have the power to effect real political change in the United States. Our destiny as Americans is still ours to choose.