The Founding Fathers understood that written laws alone cannot protect liberty. They warned that the Constitution could, like other documents before it, become a mere “parchment barrier,” easily ignored by those in power.
Leading figures like Roger Sherman, John Dickinson and James Madison voiced profound concerns about this idea that a written document alone could stop a government determined to violate rights.
Roger Sherman’s Caution
“No bill of rights ever yet bound the supreme power longer than the honey moon of a new married couple, unless the rulers were interested in preserving the rights”
Here, Roger Sherman cautioned us about relying on words on paper to stop people with power from violating rights. His metaphor highlighted the transient nature of written rights when confronted with the realities of political power.
St. George Tucker’s Maxim
Echoing Sherman’s sentiments, St. George Tucker noted that “All governments have a natural tendency towards an increase, and assumption of power.”
He continued, observing that by the first years of the 19th century, “the administration of the federal government, has too frequently demonstrated, that the people of America are not exempt from this vice in their constitution. We have seen that parchment chains are not sufficient to correct this unhappy propensity.”
His words underscored a widely-held maxim at the time of the founding that power always grows. His observation of the failure of “parchment” to stop this right from the beginning should serve as a stark warning against relying on it to do so today.
John Dickinson Pragmatic View (plus Spooner and Adams)
That doesn’t mean that written constitutions are useless, as John Dickinson noted in Fabius IV. Well-known for his pragmatism, he recognized that “A good constitution promotes, but not always produces a good administration.”
In short, clear rules make it more difficult for government to exercise arbitrary power, as even Lysander Spooner recognized nearly a century later in his Essay on the Trial by Jury:
“After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people’s liberties with impunity.”
But there’s a caveat, parchment alone can’t get the job done.
Spooner continued, making the same kind of case that Sherman and others did at the time of the founding: “Still, Magna Carta, like all other written constitutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence? [emphasis added]
John Adams made a similar observation in a letter to his son, John Quincy:
“Magna Charta was a mere Piece of Parchment,” he remarked, “which every tryumphant Faction neglected or violated at its pleasure, even much more than our national and State Constitutions are disregarded at this day.”
All this highlighted the vulnerability of written guarantees in the face of political machinations, and underscored the ongoing challenge of using written documents as meaningful safeguards for liberty.
James Madison’s Observations
James Madison, often hailed as the “Father of the Constitution,” offered a number of observations on the “inefficacy” of parchment to control people with power.
“Experience proves the inefficacy of a Bill of Rights on those occasions when its control is most needed,” Madison argued in a letter to Thomas Jefferson. As St. George Tucker also wrote, this wasn’t just mere opinion, it was based on observations of how things were playing out in practice.
He continued, writing “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”
This was similar to the observations he made some months earlier in Federalist No. 48:
“Will it be sufficient to mark with precision the boundaries of these departments in the Constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American Constitutions. But experience assures us, that the efficacy of the provision has been greatly over-rated; and that some more adequate defence is indispensibly necessary for the more feeble, against the more powerful members of the government.”
Madison went on to go through some prominent examples of how parchment did nothing to stop usurpations of power in the states. He started with the Virginia example he later offered to Jefferson, then Pennsylvania.
Rules requiring the printing of bills for the public to read – violated:
“A great number of laws had been passed violating without any apparent necessity, the rule requiring that all bills of a public nature, shall be previously printed for the consideration of the people”
Rights violated and power assumed:
“The constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the Constitution.
Executive powers had been usurped.”
Madison’s Conclusion
The “Father of the Constitution” summed up his observations in Federalist No. 48, acknowledging that something more than a constitution was absolutely necessary:
“The conclusion which I am warranted in drawing from these observations is, that a mere demarkation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Dickinson, Hancock, Parsons: The Real Check
Continuing his line of thought that a “good constitution” can promote but not guarantee a “good administration,” John Dickinson asked the essential question:
“But, notwithstanding, it must be granted, that a bad administration may take place. What is then to be done?”
The answer, he wrote, is “instantly found … before the supreme sovereignty of the people”
“IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED; or in the Roman phrase on perilous occasions—To PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.”
How the people are to get that job done depends on the circumstance, but as John Hancock recognized, “the powers reserved by the people render them secure.”
They just need to use them.
For Theophilus Parsons, this included using one agent of the people, the states, to counteract the power of another, the federal government:
“But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it.”
Roger Sherman’s Strategy
In late 1787, Roger Sherman wrote that “all acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States.”
From this simple statement we get four essential points that tie everything else together:
- Governments are gonna do what they do – violate rules given to them whenever they can get away with it.
- Just telling them to stop doesn’t work – they’ll still try to enforce their unconstitutional acts, despite being void.
- In a system of federalism – when a number of states refuse to go along – the feds don’t have the ability to handle the enforcement on their own.
- What might be the most important part – all this requires the people to refuse to comply – because there’s nothing to enforce if the people continue to obey whatever acts the federal government decides to pass.
Conclusion
In sum, these warnings about relying on a “parchment barrier” serve as a potent reminder of the Founders’ strategy for keeping the federal government within the bounds of the Constitution. They call upon us to continue striving toward a society where the promises of liberty are not merely written on paper, but steadfastly upheld in practice.
They also remind us that maintaining liberty requires much more than trying to convince the government to stop doing what the government was never supposed to be doing in the first place.
It won’t be quick, or easy. But as Thomas Paine put it, “Those who expect to reap the blessings of freedom must, like men, undergo the fatigues of supporting it.”
