Forget the Constitution

If you follow "Constitutional Law", you get the feeling that it has frequently amounted to subverting the cunning plan of limited government that the Founding Fathers designed. Take the 10th Amendment. Seriously, there really is a 10th Amendment that provides that the enumeration of rights in the Constitution is not exhaustive and that the other rights are left to the states and the people. But you'd never know it from the way the federal government works and the way that the Supreme Court interprets the Constitution. Darling of the right Antonin Scalia famously opined that rights not specifically mentioned in the Constitution were not cognizable. Supreme Courts, both leftward and rightward leaning, have consistently written the 10th Amendment out of the Constitution. When the 14th Amendment is construed to apply restrictions on the federal government to the states and when anything counts as "Interstate Commerce", there is nothing outside the purview of the federal government. The states are reduced to political subdivisions that exercise authority entirely at the sufferance of the Imperial Government in Washington.

The forms established by the Founding Fathers are maintained, but not the substance. Even Caligula kept a Senate, albeit one in which his favorite horse was said to have been made a member. Otherwise, the Imperial Government's resemblance to that established by the Founders is purely coincidental. Most recently, the Emperor and his court, with his pets in the Senate and the House, have sought to render the Congress an impotent rubber stamp. To be fair, this process has been ongoing for decades.

The Founders' bold experiment failed. Every time power collided with Constitutional limits, power won. Constitutional limits, once the Founders died, have never been anything but an argument thrown in to support one's position on a particular occasion. The same voices who cry out for states' rights on abortion cry out for federal intervention on gay marriage.

The original intent of the Founders will never again be realized. Without a Revolution, we will never return to the original meaning and system of governance enshrined in the Constitution. If such a Revolution succeeded, it would doubtless come about that the vision of the Revolutionaries would give way to power just as it did for the Founders.

When the Revolution comes, let us not reinstate the Constitution that the Founders gave us. Let's try something altogether new and unambiguous. Even that will ultimately fail us, but we may be able to apply the lessons of the failed American experiment in order to gain more time for the new regime.