Has the Constitution Failed?

By Jacob G. Hornberger

Given the massive welfare-warfare state system under which Americans live, the natural assumption is that the Constitution failed in its mission to constrain the powers of the federal government.

Actually, though, that isn’t the case.

How, then, can these two points be reconciled? How can the Constitution be said to have succeeded in its mission given that, at the same time, we now live under a massive welfare-warfare state way of life?

During the first decade of American history, the American people lived under a governmental system called the Articles of Confederation. Under the Articles, the federal government’s powers were few and weak. That’s the way Americans wanted it. They did not want a federal government with big, massive powers. Under the Articles, Americans hadn’t even given the federal government the power to tax people.

Owing to various problems had arisen under the Articles, when the delegates met at the Constitutional Convention in Philadelphia, it was only for the purpose of amending the Articles. Instead, they came out with a proposal for a different type of governmental system, one called a limited-government republic. Under this type of governmental system, the powers of the federal government would be greater than under the Articles but still extremely limited in scope and nature.

The American people were not enthusiastic about the proposal. They were concerned that under this new governmental structure, the federal government would end up wielding and exercising vast powers over the nation. That was the last thing our American ancestors wanted.
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If the Constitution had proposed the type of governmental system we have today — a massive welfare-warfare state — there is absolutely no possibility that our American ancestors would have approved the deal. They would have laughed at such a proposal, thinking that it was big joke. Once they realized that the proposal was serious, they would have summarily rejected it and continued operating under the Articles of Confederation.

Freedom and limited government
​The argument that sold the Americans was that the Constitution, which was the document calling the federal government into existence, set forth its powers. If a power wasn’t enumerated, it could not be exercised. Since the enumerated powers were so few and limited in nature, Americans took the chance with this new governmental system.

But even that wasn’t good enough for Americans. To make sure that the federal government could not do bad things to them, they demanded the enactment of the Bill of Rights, which expressly forbade the federal government from destroying their rights and liberties.

The result was the most unusual society in history. Imagine: no income tax, Social Security, Medicare, Medicaid, welfare, farm subsidies, education grants, corporate bailouts, foreign aid, public schooling, minimum-wage law, drug laws, Pentagon, CIA, NSA, Homeland Security, TSA, war on terrorism, foreign military bases, foreign wars of aggression, coups, alliances with dictatorial regimes, torture, state-sponsored assassinations, immigration controls, fiat (i.e., paper) money, secret surveillance, gun control, Federal Reserve, and very few economic regulations.

Today’s Americans, of course, live under a welfare-warfare state system that has all of those things.

Therefore, how can it be said that the Constitution succeeded in keeping the powers of government few and limited?

The protection of civil liberties
For one thing, consider the right of trial by jury. There is no doubt that U.S. national-security state officials hate the right of trial by jury. We can see that in the “judicial” system that the Pentagon and the CIA have established in Cuba. In their system, people who are being criminally prosecuted for terrorism are entitled only to a military tribunal, one that is kangaroo in nature.

In fact, the Pentagon and the CIA rejected virtually all of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments in their system. In Cuba, Pentagon and CIA officials are empowered to torture people into making confessions. Hearsay evidence and evidence acquired by torture are admissible. Lawyer communications with clients are secretly monitored. The accused are presumed guilty. No one is entitled to bail.

There is little doubt that that’s the type of criminal justice system we would be living under here in the United States if it hadn’t been for the Bill of Rights. The Constitution has protected us from the type of criminal justice system that the Pentagon and the CIA have established in Cuba, which, in many respects, resembles the criminal justice system that the communists have on their side of Cuba.

The same holds true with respect to freedom of speech and other liberties. While there are assaults on freedom of speech, no one is being jailed for criticizing the government, as they are in, say, China, Cuba, and North Korea.
So, why then didn’t Constitution protect us from the massive welfare state and warfare state under which we now live?

The Constitution as a sea wall
The answer can be explained with an analogy. The Constitution is much like a sea wall. The purpose of a sea wall is to protect a coastal community from high tides. But it is not designed to protect a community from a tsunami. Thus, when a tsunami hits and overwhelms the community, we can’t say that the sea wall has failed because that wasn’t ever the purpose of the sea wall.

The Constitution was intended to be a political sea wall, one designed to protect America from high tides of tyranny, such as assaults on civil liberties that took place during the Civil War or during World War I. But it was never designed to protect the country against a tsunami of public opinion favoring and even demanding an oppressive and tyrannical system, such as a massive welfare-warfare state.

That’s what happened with socialism. The move toward socialism began in the late 1800s and early 1900s. It culminated in a massive tsunami-sized wave of public opinion in favor of the welfare-state way of life in the 1930s and has grown ever since.

The same is true with respect to the warfare state. Foreign interventionism, empire, and meddling began in the late 1800s and then proceeded apace with the two world wars. The tsunami of public opinion reached an apogee with the conversion of the federal government to a national-security state after World War II, one where the Pentagon, the CIA, and the NSA were brought into existence and empowered to exercise omnipotent, dark-side, sordid powers that were characteristic of communist and totalitarian regimes.

The experience shows that a Constitution is never sufficient to protect liberty because if a critical mass of people in society lose their love for liberty and demand “security” instead, the Constitution will not prevent that from happening.

Is it possible to restore the good founding principles of America? Of course it is. All it takes is for the tsunami of public opinion to run in the direction of liberty and limited government.

This article was originally published at The Future of Freedom Foundation.