The Constitution Should Be a Starting Point, Not an Afterthought

Why constitutional accountability must begin before legislation becomes law—not after citizens have paid the price.

There is a fundamental principle in American life that most of us understand from an early age: rules matter, and violating them carries consequences.

In the workplace, employees are expected to follow established policies and procedures. Failure to do so can result in disciplinary action, suspension, or termination. In some professions, violating the rules can even result in civil or criminal liability.

Yet when it comes to the people who write and enforce our laws, accountability often seems considerably less straightforward.

Every member of Congress takes an oath to support and defend the Constitution of the United States. That oath is a solemn obligation to the American people. It should carry meaningful responsibilities.

So why does it so often seem that constitutional questions are left for the courts to resolve only after legislation has been passed, regulations have been implemented, and ordinary citizens have suffered the consequences?

The Constitution should be the starting point for every piece of legislation, not an obstacle to be addressed after the damage has been done.

The Constitution Is Not a Suggestion

The framers of our Constitution understood the dangers of unchecked government power. They established a system of limited government, separated powers, and individual rights intended to protect citizens from governmental overreach.

The Bill of Rights is particularly important because it establishes boundaries that government is not supposed to cross.

Consider the Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Those final four words are remarkably direct: shall not be infringed.

Yet throughout American history, lawmakers have proposed and enacted restrictions on firearm ownership, including outright prohibitions, registration requirements, and special taxation.

The Supreme Court has recognized that the Second Amendment protects an individual right while also allowing certain historically grounded restrictions. In District of Columbia v. Heller (2008), the Court struck down a handgun ban. In New York State Rifle & Pistol Association v. Bruen (2022), it required governments to justify restrictions through the nation’s historical tradition of firearms regulation.

Reasonable people can disagree about the precise constitutional boundaries of firearm regulation. But that disagreement does not relieve lawmakers of their responsibility to examine those boundaries before acting.

When Congress considers banning an entire category of commonly owned firearms, shouldn’t legislators first be required to explain how that prohibition complies with the Second Amendment?

Shouldn’t the constitutional question come before the political debate over whether the restriction is desirable?

And shouldn’t the burden of establishing constitutional authority rest with the government seeking to exercise that authority?

When the Government Changes the Rules

The ATF’s 2023 pistol stabilizing brace rule offers a particularly troubling example of the consequences that can follow when government changes its interpretation of existing law.

For years, Americans purchased firearms equipped with stabilizing braces, relying in part on classification decisions previously issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Then, in January 2023, the agency issued a new rule that brought many firearms equipped with stabilizing braces under the National Firearms Act’s restrictions on short-barreled rifles.

Owners suddenly faced consequential choices.

They could register affected firearms, modify them to comply with the agency’s interpretation, remove the affected components, or surrender or destroy the firearms. Noncompliance could expose owners to serious federal criminal penalties.

The agency provided a temporary waiver of the normal $200 making tax for qualifying registrations. But waiving a tax did not eliminate the burden imposed on lawful owners.

Some owners had to spend money modifying firearms. Others faced uncertainty about whether their property remained legal. Businesses faced disrupted inventories and sales. Advocacy organizations and individuals committed resources to challenging the rule.

Then, on June 13, 2024, a federal district court vacated the rule in Mock v. Garland, finding that the ATF had violated the Administrative Procedure Act.

Importantly, the court did not declare the rule unconstitutional under the Second Amendment. Its ruling concerned the agency’s failure to comply with administrative-law requirements.

That distinction matters legally.

But it does little to diminish the larger accountability question.

What happened to the money, time, and resources citizens had already spent complying with a rule that was ultimately set aside?

Who reimbursed the firearm owner who paid to modify a legally purchased firearm?

Who compensated businesses for disruptions attributable to the regulation?

Who returned the countless hours spent trying to understand and comply with changing requirements?

A court eventually invalidated the rule. That did not automatically make everyone affected financially or personally whole.

The government had the resources to defend its position. Ordinary citizens had to bear the consequences while the litigation unfolded.

That is precisely the imbalance that constitutional accountability should seek to prevent.

When the Full Weight of Government Falls on One Citizen

Consider another case: Matthew Hoover, the firearms commentator associated with the CRS Firearms YouTube channel.

Hoover promoted a product known as the AutoKeyCard, a metal card engraved with outlines of components that could be fashioned into a machine-gun conversion device.

The government argued that the cards constituted illegal machine-gun conversion devices under federal law. The defense disputed that characterization, arguing that the engraved cards were essentially novelty items rather than functioning machine guns.

Federal prosecutors presented evidence concerning the cards’ intended use and Hoover’s role in promoting them. A jury convicted Hoover and manufacturer Kristopher Ervin in April 2023. Hoover received a five-year federal prison sentence that September.

The prosecution was successful, and the conviction cannot simply be dismissed as an established constitutional violation. The government had a statutory argument, and the jury accepted its case.

Nevertheless, the prosecution raises questions that deserve serious consideration.

At what point does an engraved piece of metal become a prohibited machine-gun conversion device?

How clearly must federal law define that boundary before someone can face years in prison for crossing it?

And what resources must an ordinary citizen possess to defend against the combined investigative and prosecutorial power of the federal government?

The government has investigators, attorneys, expert witnesses, and substantial institutional resources.

The individual defendant must find representation, endure the uncertainty of criminal prosecution, and potentially risk everything.

Even when defendants ultimately prevail in other cases, they may never recover the years, money, or opportunities consumed by their defense.

The process itself can impose enormous punishment-like burdens, regardless of the eventual outcome.

That reality should make government officials especially careful about how they interpret and enforce laws carrying severe criminal penalties.

Taxing a Constitutional Right

The National Firearms Act presents another constitutional question.

In Sonzinsky v. United States (1937), the Supreme Court upheld the NFA’s $200 annual tax on firearms dealers as a valid exercise of Congress’s taxing power.

The Court recognized that a tax can have regulatory effects without automatically becoming unconstitutional.

That precedent remains important. But the decision specifically addressed the dealer tax; it did not establish that Congress may impose any conceivable tax on any firearm protected by the Second Amendment.

There is a meaningful difference between collecting ordinary revenue and using taxation to make exercising a constitutional right prohibitively expensive.

Imagine Congress imposing a special tax of several thousand dollars on the acquisition of commonly owned semiautomatic firearms.

For wealthy Americans, that might be an inconvenience.

For a working-class family, it could effectively eliminate the ability to purchase a firearm for lawful self-defense.

The result would be a constitutional right whose practical availability depends on personal wealth.

Is a right meaningfully protected if the government can price ordinary citizens out of exercising it?

That question should be answered before such legislation becomes law, rather than after citizens have been forced to challenge it in federal court.

Winning in Court Does Not Mean Being Made Whole

Perhaps the greatest weakness in relying exclusively on judicial review is the assumption that a favorable court ruling repairs the harm caused by an unlawful government action.

It often does not.

A court can overturn a conviction, but it cannot return the years someone spent incarcerated.

A court can invalidate a regulation, but it cannot necessarily restore a business that failed while trying to comply.

A court can strike down an unconstitutional restriction, but it cannot give citizens back the years during which they were unable to exercise their rights.

Attorney fees, lost wages, damaged reputations, emotional distress, and disrupted families do not simply disappear when a judge issues a favorable ruling.

And financial compensation is not automatic. Legal doctrines such as sovereign immunity, limitations on damages, and qualified immunity in applicable individual-official lawsuits can make recovery difficult even when government conduct is successfully challenged.

There is a fundamental difference between correcting an unlawful government action and making its victims whole.

Our system is capable of the former.

It is far less reliable at accomplishing the latter.

That is why preventing constitutional violations should receive at least as much attention as correcting them.

Accountability Should Begin Before the First Vote

None of this means every constitutional question has an obvious answer.

Courts disagree. Legal interpretations evolve. Legislators can sincerely disagree about what the Constitution permits.

And no elected official should face personal punishment simply because a court eventually rejects a good-faith constitutional interpretation.

But there should be a meaningful distinction between an honest constitutional disagreement and knowingly disregarding established constitutional limits.

Before legislation affecting fundamental rights advances, lawmakers should be required to confront its constitutional implications openly and seriously.

A formal constitutional review process could require legislators to identify the constitutional authority supporting a proposal, address relevant Supreme Court decisions, examine the rights potentially affected, and explain why the proposed law is consistent with those protections.

Such a process would not replace the courts, nor could it guarantee that every law would survive judicial scrutiny.

It would, however, require constitutional responsibility at the beginning of the legislative process.

Agency officials should face comparable expectations when developing regulations that could expose citizens to criminal penalties.

And where officials deliberately violate clearly established legal limits, meaningful accountability should be available through appropriate oversight, disciplinary processes, and legal remedies.

This principle must apply regardless of political party.

A constitutional violation does not become acceptable because it advances a policy we support. Nor does constitutional restraint become optional when the opposing party controls government.

The Constitution is supposed to bind everyone who exercises public power.

The Oath Must Mean Something

Every elected federal official who swears to support and defend the Constitution accepts a responsibility that extends beyond political loyalty, campaign promises, and legislative objectives.

That oath should influence the decisions officials make before they cast a vote, sign legislation, or implement a regulation.

Too often, our public debate treats constitutional scrutiny as something that happens after a law is enacted.

Pass the law. Enforce the regulation. Let the courts sort it out.

But that approach places an extraordinary burden on ordinary Americans.

It effectively asks citizens to finance the defense of their own constitutional rights against a government supported by their tax dollars.

And if they eventually prevail, they may discover that the victory comes without adequate compensation for everything they have lost.

That is not the standard of accountability Americans should expect from those entrusted with governmental power.

We expect employees to follow the rules before they act. We expect professionals to understand the legal limits of their authority. We expect citizens to obey the law, often under threat of substantial penalties.

Why should the people who make and enforce those laws be held to a lesser standard of care?

The Constitution was written to restrain government power and protect individual liberty. Its safeguards should not depend entirely on whether an ordinary citizen can afford years of litigation.

The responsibility to uphold the Constitution belongs first to the people who exercise governmental power—not merely to the citizens forced to challenge them.

Because when government oversteps, the damage can be permanent.

A lost business cannot always be rebuilt.

A ruined reputation cannot always be restored.

And a year taken from someone’s freedom can never be returned.

The Constitution should never be treated as an afterthought, and constitutional accountability should never begin only after the harm has been done.

It should begin before the first vote is cast, not after the last appeal is exhausted.