On the Failure of Constitutionalism Through the Ages

This article was originally published by Joseph Solis-Mullen at The Mises Institute under the title: On the Failure of Constitutionalism Through the Ages: Norms, Emergencies, and the Administrative State

Classical liberals, as well as some libertarians, have long placed great faith in constitutions as instruments capable of restraining political power. Particularly following the Renaissance and Enlightenment, written constitutions began to be celebrated by limited government political theorists as rational devices designed to bind rulers, limit coercion, and protect liberty through clearly-enumerated rules.

Yet a persistent strain of skepticism—articulated most sharply by thinkers such as Murray Rothbard and Ralph Raico—has questioned whether constitutions can ever perform this task in practice. Far from constraining power, they recognize, constitutions tend to be reinterpreted, circumvented, or absorbed into expanding state structures once they conflict with the incentives of those who govern.

Rather than restating this argument in the abstract, we will examine three historical case studies—Republican Rome, medieval Florence, and 20th-century England—to demonstrate how constitutional arrangements repeatedly failed to limit government power. These cases span vastly different political, social, and institutional contexts, yet they reveal common mechanisms by which constitutional restraints eroded: the normalization of emergency powers, the displacement of formal limits by informal authority, and the rise of bureaucratic administration that enables what Tocqueville famously called “soft despotism.”

Republican Rome: Constitutional Norms Without Enforcement

The Roman Republic is often invoked as a paradigmatic example of constitutional government without a written constitution. Its complex system of magistracies, popular assemblies, and senatorial authority was governed by mos maiorum—customary norms that defined the boundaries of legitimate political behavior. For centuries, these norms successfully constrained officeholders, limited terms, and distributed authority in ways that prevented the consolidation of permanent power.

Yet the Roman case illustrates with particular clarity the fragility of constitutional restraint once political incentives change. Rome’s constitutional system depended not on enforceable legal mechanisms but on elite self-restraint and a combination of cooperation and competition. As long as competition among aristocrats remained bounded by shared norms, and cooperation was required by their external threat environment, the system functioned. Once military expansion had eliminated those threats, and intensified elite competition over the spoils of empire brought mass politics into play, those norms proved insufficient, and corruption, lawfare, and civil war were the results.

The constitution of the Roman Republic—the way the polity had been constituted and run going back many generations—was gradually altered; the powers of offices such as the Tribunate reinterpreted; extraordinary military commands granted; and the subtle handshake agreements elites eventually became brazen corruption, the buying of votes, judicial rulings, and army commands.

Unsurprising, then, that the transition from republic to empire occurred largely through legal offices and constitutional mechanisms, demonstrating that constitutionalism fails not merely when norms are broken, but when they are reinterpreted to justify demagoguery, welfarism, and domination.

The result was meaningless elections to offices that exercised no real power and a state increasingly run by a professional bureaucracy at the command of an all-powerful executive.

Medieval Florence: Republican Forms and Oligarchic Reality

If Rome illustrates the collapse of norm-based constitutionalism, medieval Florence demonstrates the limits of elaborate constitutional machinery. The Florentine Republic prided itself on its republican identity, complex institutional design, and hostility to tyranny. Its political system featured rotating offices, guild representation, multiple councils, and intricate procedures meant to prevent the rise of permanent rulers.

Yet Florentine constitutionalism proved remarkably vulnerable to informal power. While republican forms remained intact, effective authority migrated outside formal institutions and into elite networks—most famously those associated with the Medici family. Control was exercised not through overt abolition of republican offices but through patronage, financial leverage, and influence over appointments. Constitutional complexity became a façade behind which oligarchic power operated largely unchecked.

Like Rome, Florence also reveals how emergency governance undermines constitutional limits. Committees formed to address crises—military threats, fiscal emergencies, internal unrest—acquired extraordinary authority that gradually displaced ordinary procedures. These measures were always justified as temporary, yet they created precedents that normalized rule by exception.

The Florentine case undermines the notion that participation and institutional density guarantee restraint. A constitution may remain formally democratic while substantive power is exercised elsewhere. In such cases, constitutionalism does not fail dramatically; it becomes irrelevant. Again, the state persists, the offices continue, but real decisions are made beyond constitutional reach.

20th Century England: Soft Despotism and the Administrative State

England offers perhaps the most unsettling case study for defenders of constitutional restraint. Lacking a written constitution, England relied on tradition, common law, parliamentary supremacy, and a deeply-entrenched culture of legality to limit government power. For centuries, this arrangement was widely-regarded as a model of constitutional liberty.

Yet, from its mid-19th century apogee, the 20th century witnessed a dramatic descent to the depths of statism without apparent constitutional rupture. Parliamentary supremacy—originally seen as a safeguard against absolutism—enabled the systematic transfer of legislative power to administrative agencies. Bureaucratic governance expanded through regulation, welfare provision, and economic management—as in the United States, often with minimal public debate and little resistance.

This transformation did not occur through coups or revolutions, but through ordinary legislative processes. Power migrated from elected representatives to permanent officials insulated from democratic accountability. Rules replaced discretion, procedures replaced judgment, and legality replaced liberty as the primary measure of legitimacy.

Here the failure of constitutionalism takes its most subtle form. England did not abandon constitutional government; it perfected administrative governance within it. Citizens remained formally free, yet increasingly subject to impersonal regulation. The result resembles Tocqueville’s “soft despotism”—a system in which individuals are managed rather than commanded, governed rather than ruled.

England’s experience demonstrates that constitutionalism can fail precisely because it functions smoothly. When governance is legal, orderly, and bureaucratic, resistance appears unnecessary. Yet it is in this environment that liberty quietly erodes—as present-day England, where one can be jailed for offending someone with an internet post, well attests.

Conclusion: The Illusion of Constitutional Restraint

Across these three cases, a common pattern emerges. Constitutional limits do not collapse under external assault; they erode from within. The capability of self-governance in the voting body deteriorates. Emergency powers become permanent. Legal interpretation supplants legal restraint. Informal authority displaces formal rules. Bureaucracy transforms coercion into administration.

Constitutions are not self-enforcing. They rely on incentives, norms, and power structures that invariably favor expansion rather than restraint. When constitutions conflict with political interests, they are not discarded; they are obeyed in ways that render them meaningless.

As Rothbard and Raico insisted, liberty cannot be secured by parchment barriers. Constitutions do not fail because they are violated; they fail because they are preserved—worse, revered, reinterpreted, and administered long after they cease to limit power.

History, therefore, offers little comfort to those who believe that constitutionalism can overcome the fundamental logic of the state.

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” –Lysander Spooner