This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.
The Constitution and the Permissive Public
In the Federalist Papers, Alexander Hamilton made the rather unremarkable observation that “…nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.” For an example, he drew from antiquity the case of Sparta’s highly decorated admiral, Lysander, in the Peloponnesian War. Term limits in Sparta required that Lysander resign as admiral at the end of his one year term of office and that no person could hold the office of admiral a second time. Yet when Sparta suffered a naval defeat, Lysander was soon called upon to lead the Spartan Navy once more in battle. Hamilton noted “how unequal parchment provisions are to a struggle with public necessity.” To paraphrase; it isn’t a fair fight. When constitutional limitations are paired against public necessity in the boxing ring, it’s like trying to take on an opponent whose weight class is three classes higher than yours. Sure, you may get a few punches in. You may even secure a few concessions from your opponent in the process. But in the end, constitutional limitations will inevitably succumb to perceptions of public necessity.