The Real, Forgotten Enforcement Mechanism of the Constitution
“A refusal to cooperate with officers of the Union.”
That was James Madison’s answer to federal overreach – a strategy rooted in the very principles that founded the American republic.
But you won’t hear about Madison’s enforcement strategy in government-run schools. Instead, they push the myth that only the federal government can determine the extent of its own powers.
The truth? The Founders never told us to wait for the government to limit itself. They told us to act.
In this article, we’ll break down exactly how the Founders expected us to enforce the Constitution – whether the government likes it or not.
GOVERNMENT IS AN AGENT, NOT A MASTER
The first step in enforcing the Constitution is understanding that government is not a ruler – it is merely an agent, a servant of the people. St. George Tucker made this clear:
“It being one of the great fundamental principles of the American governments, that the people are the sovereign, and those who administer the government their agents, and servants, not their kings and masters.”
John Jay, the first Chief Justice of the Supreme Court, reinforced the point:
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated.”
Government exists to carry out specific tasks on our behalf, bound by the constitutional powers delegated to it. It was never meant to hold unlimited power.
ONLY DELEGATED POWERS ARE LAWFUL
One of the most fundamental principles of the American system is constitutional supremacy – meaning government can only exercise the powers specifically delegated to it, and nothing more.
William Davie, speaking at the North Carolina Ratifying Convention in 1788, reminded us:
“It can be supreme only in cases consistent with the powers specially granted, and not in usurpation.”
Davie’s words underline the difference between constitutional acts and unconstitutional ones. A constitutional act is carried out under delegated authority. A usurpation, by contrast, is an act of theft – government seizing power that was never delegated to it in the first place.
This distinction was a common theme in the Revolutionary and Founding eras. The Declaration of Independence explicitly lists “injuries and usurpations” – what most today refer to as “grievances.”
That’s how Alexander Hamilton described it when discussing the supremacy clause, and getting us into the enforcement mechanism for the Constitution
“it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
Hamilton explicitly says that unconstitutional acts (which invade powers left to the states or to the people) deserve to be treated as usurpations. In other words, not as law at all. The obvious question is: How exactly should they be treated?
UNDERSTANDING THE CONSTITUTION IS VITAL
The people themselves must understand their own constitution.
Otherwise, they risk being fooled – whether by government officials who exceed their powers, or by judges who magically “discover” new ones. As Lysander Spooner wrote in his 1850 pamphlet A Defence for Fugitive Slaves:
“The constitution as much presumes that the people understand its own meaning, as it does that they understand a judicial opinion.”
Elaborating on this point, Spooner added:
“it presumes that the people are competent to understand both the meaning of the constitution and the meaning of the courts; and consequently that they are competent to determine whether the opinions and decisions of the courts correspond with the constitution, and whether, therefore, their decisions are to be obeyed or resisted.”
Spooner was speaking largely about judicial opinions, but the same principle applies across all branches – legislative, executive, or judicial – since no one branch can be trusted to be the final judge of its own powers.
So, how do the people learn that? Like any legal document – they have to understand it how the people who gave it legal force understood it – that is the ratifiers, the people of the several states.
When people rely on government officials’ self-serving interpretations, they risk losing the constitutional limits and their liberty. This is why Thomas Jefferson and James Madison both insisted that the Constitution must be understood in light of the meaning adopted by those who ratified it. Only then can we avoid the temptation – or excuse – of twisting the text to fit political agendas.
Jefferson offered a clear guide for constitutional interpretation:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was past.”
In a similar vein, James Madison confirmed this principle, emphasizing that the binding meaning of the Constitution rests on the understanding of the ratifiers.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.”
This is not mere academic exercise. If government is only an agent – delegated specific powers under a set of rules – then understanding those rules accurately is crucial to policing them. Otherwise, every temptation of power will push government officials to read in new authorities and simply declare them “constitutional.”
THE OATH OF OFFICE DEMANDS ACTIVE OPPOSITION
Every federal and state official swears an oath to support the Constitution. St. George Tucker made it clear: they must not only refrain from enforcing unconstitutional acts but actively oppose them:
“Acts of Congress to be binding, must be made pursuant to the Constitution; otherwise they are not laws but a mere nullity, or what is worse, acts of usurpation.”
In other words, a law that goes beyond delegated powers loses its status as law altogether. For Tucker, it becomes nothing more than an unconstitutional act – something the people and the states are not bound to obey.
He continued:
“The several departments and officers of the government, both federal and state, are bound by oath to oppose these acts; for being bound by oath to support the Constitution, they must violate that oath whenever they give their sanction by obedience or otherwise to any unconstitutional act of any department of the government.”
Tucker explained that any official who even obeys an unconstitutional law is, strictly speaking, violating his or her oath to uphold the Constitution. That’s a very high standard – and one rarely taught in modern education.
WORDS ON PAPER DON’T ENFORCE THEMSELVES
What happens when officials ignore their oath of office? Simply waving the Constitution in front of them won’t work. James Madison warned that mere parchment barriers have never been enough:
“A mere demarcation on parchment of the constitutional limits… is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Roger Sherman – a delegate at the Constitutional Convention and one of the most influential Founders – had much the same assessment.
“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.”
In other words, the honeymoon period of a new government might see officials respecting the Constitution. But over time, they soon realize there is no magic force in words on paper.
Unless something truly compels them to abide by their limits, they will violate them.
THE FOUNDERS’ REAL ANSWER: THE PEOPLE THEMSELVES
The question is clear: if not words on paper and not government’s own sense of self-restraint, what truly keeps government within its bounds?
Since we can’t trust government to keep itself in check, if you want government in check – someone else has to do it. John Dickinson said it was up to “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 does a free people ensure that the Republic receives no damage and that the Constitution is preserved?
Definitely not by complying – and waiting for the government to limit itself.
James Iredell, one of the first associate justices on the U.S. Supreme Court, was emphatic:
“The only resource against usurpation is the inherent right of the people to prevent its exercise.”
He didn’t suggest it was a last resort or something to try later on. It’s the only resource against usurpation.
Thomas Jefferson was just as direct in his draft for the Kentucky Resolutions of 1798. Referring to the Alien and Sedition Acts as unconstitutional overreach by the federal government, Jefferson declared:
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
Again, this wasn’t just a “good idea” or something to be tried only at a final, desperate stage; it was the rightful course of action.
MADISON’S FOUR-POINT STRATEGY
How would such a rightful remedy look in practice? In Federalist No. 46, James Madison offered a practical four-step plan for responding to federal usurpations. It’s striking how simple and decentralized his approach was:
- Protests and Disobedience by the People
Madison identified public outcry and non-compliance as the essential first line of defense. By refusing to support or obey unconstitutional measures, the people immediately create friction that disrupts federal enforcement. - Vocal Opposition by Governors
Madison next urged state executives to speak out forcefully against federal overreach. Their leadership could rally public opinion and put institutional weight behind local disobedience – encouraging the legislature and citizens alike to act. - Legislative Devices
To back up popular resistance, state legislatures should pass laws or resolutions that hinder implementation of the disputed federal policies. These “devices”could range from formal protest to direct legal barriers against federal enforcement - A Refusal to Cooperate with officers of the Union
This final step merges popular opposition with legislative action: the people refuse to comply, while state law bars government agencies from assisting federal enforcement. By withholding manpower, resources, and administrative support, they cut off the practical means for carrying out an unwarrantable act..
Taken all together – public protests, vocal opposition by governors, legislative devices, and refusal to cooperate – Madison believed these four steps, if applied across multiple states, would create conditions the federal government “would hardly be willing to encounter.”
He saw this bottom-up strategy – not reliance on courts, Congress, or the Executive—as the surest way to preserve constitutional balance.
ROGER SHERMAN’S PARALLEL STRATEGY
One month earlier, Roger Sherman arrived at the same conclusion:
“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 these two sentences, we see four insights:
- Acts of Congress that lack constitutional warrant will still happen (governments do what governments do).
- Declaring them void on paper doesn’t halt enforcement.
- If a critical mass of states withdraw support or refuse to enforce, the federal government lacks the manpower to get the job done.
- Most importantly, that refusal ultimately depends on the people themselves. If the people broadly comply with an unconstitutional act, there is nothing to enforce.
RESISTANCE: THE JUST COURSE AND CONSTITUTIONAL MAINTENANCE
During Massachusetts’s ratifying convention, Theophilus Parsons made it crystal clear that an unconstitutional act is not law – and that resistance is the just course:
“An act of usurpation is not obligatory; it is not law, and any man may be justified in his resistance.”
Meanwhile, James Iredell – who had already declared in North Carolina’s ratifying debates that “the only resource against usurpation is the inherent right of the people to prevent its exercise” – took that principle further, arguing that “the people will resist if the government usurp powers not delegated to it.”
In other words, Iredell saw widespread noncompliance as the real enforcement mechanism against federal overreach.
Decades later, Lysander Spooner carried this same line of thinking forward, applying it to the issue of slavery. Although modern schools often overlook him, Spooner remained faithful to the founders’ enforcement approach. In A Defence for Fugitive Slaves (1850), he wrote:
“The exercise of this right is neither rebellion against the Constitution nor revolution. It is a maintenance of the Constitution itself, by keeping the government within the Constitution.”
Spooner also emphasized that this resistance:
“Is also a defense of the natural rights of the people against robbers and trespassers, who attempt to set up their own personal authority and power in opposition to those of the Constitution and people, which they were appointed to administer.”
By describing usurpers in government as “robbers and trespassers,” Spooner offered a vivid snapshot of how the Founders viewed unconstitutional power grabs.
When government agents go beyond delegated authority, they steal power that rightfully belongs to the people of the several states. In resisting them, the Constitution is enforced and preserved – not overthrown.
IT WON’T BE QUICK OR EASY
Putting this into practice against the largest government in history won’t happen overnight. Thomas Jefferson, writing in 1790 to the Marquis de Lafayette, captured the challenge succinctly:
“We are not to expect to be translated from despotism to liberty in a feather-bed.”
After all, government officials long accustomed to wielding unchecked power will not simply relinquish it once people start to resist.
Likewise, Thomas Painewarned that “the strength and powers of despotism consist wholly in the fear of resisting it.”
The Founders never hid the reality: resisting an overreaching government demands both risk and courage. Threats, intimidation, or worse might await those who stand firm. Yet without bold resistance – from local officials, from state legislatures, and above all from individuals – the best-drawn Constitution remains just ink on paper.
Samuel Adams summed it up best:
“The truth is, all might be free if they valued freedom, and defended it as they ought.”
SIX CORE PRINCIPLES
We’ve seen how the Founders insisted that words on paper are never enough on their own – and how states and individuals must actively refuse to comply with unconstitutional acts. So, how do we sum up the key lessons? Here are the core points that define the real enforcement mechanism for the Constitution:
- Government is just an agent – the people are in charge.
- Know the Constitution’s original meaning – so you aren’t fooled by politicians or judges.
- They all take an oath – and that means actively opposing every usurpation of power.
- Words on paper don’t enforce themselves
- You can’t trust government to limit itself – so the people must stay vigilant.
- The only true check on power? The people themselves. Non-compliance, resistance, and nullification – this is how government overreach is stopped.
If the people of the states don’t protect and defend their own constitution and their own liberty, no one else will.
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