The Limitations of Constitutional Reforms

When the humanistic spirit of the modern age reveals any new assault on individual liberty or Biblical morality, there is sure to be an immediate cry for a new constitutional amendment to preclude such attacks. Some of these proposals may be prudent, even noble, causes. Before we take refuge in constitutional reform, however, we need to realize its limitations.

Constitutions are a false security in an evil culture. They cannot create a moral ethic in a people, its law enforcement, or its courts. Many have cried that we must “get back” to the Constitution, yet it is not really a strategy of victory to go back to what is presently ignored and violated. Constitutions are a limitation on government authority by means of a procedural directive. They are a constraint that is always limited by the ability and willingness of those entrusted to enforce their provisions. Constitutions provide a procedural rule, but not a moral rule. They will not long restrain evil men. Character and ethics, not documents and procedures, are what define any culture, indeed any civilization.

When he emerged from the Constitutional Convention, Benjamin Franklin was asked what kind of government had been established. “A republic, if you can keep it,” he replied. The burden of good representative government, Franklin observed, eventually fell to those represented. The dangers of mob rule inherent in democracy are only separated by extra layers of constitutional provisions and officers in a republic; they are not absent.

When the Frenchman Alexis de Tocqueville traveled in the United States in the 1830s, he noted its considerable strengths, but also the inherent dangers that threatened it. His studies were titled Democracy in America I and II, which reflected his awareness of the damage democracy had done a generation earlier in France. After the destruction of states’ rights in the War Between the States, the references to the republic in American life grew fewer, and democracy was increasingly espoused as the essence of the American system of government.

Democracy’s Threat to Freedom

Most Americans now believe in democracy as a sacred tenet of freedom. In reality, democracy favors a concentration of powers in the state, which becomes the highest collective voice of the people. The lesser authorities and power centers necessary to a republic are marginalized, for in democracy there can be only one ultimate mouthpiece. Individuals are, in fact, also demoted to an insignificant status as a part of “mankind” or a single element of either the “majority” or the “minority.” People as individuals disappear in favor of the collective people; individual men are swallowed up in “humanity.”

The layered, shared, and limited government of a republic is a far greater procedural limitation than afforded by a democracy, but these are, in the end, only structural limitations. Impediments to evil men are not barriers, and no structure or procedure can long constrain an immoral people who wish to use the procedures of government or the language of democracy to impose their will on others.

Legal systems and procedural forms cannot create a good government from bad citizens. Evil can take any procedural form. The U.S. Constitution was and is in many ways a brilliant work of an unusually gifted group of men, but its strength, as Franklin noted, ultimately rested in the character and vigilance of the American people. Later attempts to replicate the Constitution in other nations did not produce the same results. The character of differing peoples gave differing results. Today, we are still suffering from the fallacy that importing American forms will duplicate the American success.

Modern Jurist Claims

A document can neither create nor restore liberty, particularly if it is interpreted in the highest courts, as is our Constitution. The modern jurist claims an authority equal to the Constitution and that his words carry more weight than the words of that document. As long as we tolerate such judicial doctrine, no constitutional protections are secure.

We can take it as a given that modern jurists do not highly regard the original intent of the writers of the Constitution. Its words constrain no more than the argument contained in the writing of their new opinions. At other times, the outright ignoring of the Constitution has been notable. The ownership by government of most of the present federal lands is prohibited by the Constitution, as is the printing of paper money (Article I, Section 8). The most ignored part of the Constitution may be the Tenth Amendment, which reserves all powers not specifically delegated to the national government nor prohibited to the states either to the states or the people.

Putting a law into black and white does not necessarily mean it will be followed. God’s laws were made abundantly clear in His revealed Word. Still, men have long substituted the commandments of men for those of God. If our nation and its courts, indeed if our culture and civilization, ignore and reinterpret God’s law, how can we feel any written limitation on man will fare better?

Constitutions are a necessary limitation on state power, but they are, ultimately, only procedural and cannot fix the basic cause of bad governance, which is the evil nature of men. The moral problem is not isolated to those in positions of power, either. As Franklin implied, the people have a significant role in the outworking of representative government.

The Statists

Limited government is most desirable to a people who choose to direct their own lives. To them, a constitution represents a plan for personal liberty and responsibilities. Statist government is for a citizenry who prefer the security of big government, for those who seek the “safety net” of socialistic security and are ready to demand that the government “do something” if the price of a commodity or service is too high or because a natural disaster has caused them loss. A constitution that defines a limited government will not long restrain government if the citizenry itself demands a more powerful and active government.

Many of the modern revisions (actual or de facto) of our Constitution reflect a new perspective on the nature of government’s purpose. The U.S. Constitution represented a plan for a limited government. The modern view of the nature and purpose of government has changed greatly. Limitations on government, a leftover of the Puritan belief in man’s sin nature and his tendency to use power for selfish ends, are today rarely advocated. Instead we hear about new programs, all of which are designed to represent a great expansion of government, to solve perceived problems. The Constitution was written for a constrained state and for a free people. Today the preference is increasingly for a free state and a constrained people.

The fact that our Constitution has been ignored and abused is a serious concern. A piecemeal approach of undoing the damage by amending the Constitution will not alter the root moral problem. Tocqueville recognized that a representative government could not be better than the people it represented. Constitutional reforms must thus be short-term goals. The only long-term solution is a moral and spiritual reform.

Moving Toward the Future

When a man lies dying, it does him limited good to study how the poor habits of a lifetime have contributed to his condition. What he needs to know is if there is now anything he can do to restore his health. Learning from the past is no substitute for moving toward the future. Likewise, documenting our long departure from the Constitution, limited government, and individual liberty is no substitute for charting a path forward toward their restoration. This, of course, is a more difficult proposition, largely because it presupposes the need for a fundamental change in the character and behavior of a citizenry. Without such a moral change, procedural proposals will at best be a delaying strategy. Before there can be substantive and lasting constitutional reform, there must be moral reform.

We cannot revive the past, though we can learn from it. Our duty is to build toward the future in terms of new victories of the faith and its application to our law and culture beginning where we now find it. It will do us no good to fix any date, historical period, or long-lost standard as an ideal to which we aspire. Elijah could not afford to wax romantic about the time of King David, or David about that of Joshua, or Joshua of Moses, or Moses of Abraham. Each had new challenges and new opportunities, as do we. The future is not in reviving the past but in the revival of a people in terms of the Holy Spirit and His regenerating call. The only legitimate backward look is to the revealed Word of God, which is our guide to present and future faithfulness.

A political or procedural answer will not last long. The only real reform must be a spiritual reform.