The Constitution hasn’t failed. It works just fine for those who will keep their sworn oaths to uphold and defend it.
You can't pawn the failure off on the people alone, when it was clear at the time of the founding that people were a necessary input into the system.
The people have clearly failed. I don't deny that. But I see that as a de-evolutionary process. People's understanding of republicanism has changed as the rules have changed.
There were some obvious glaring errors that led to completely avoidable misconstruction. The "general welfare" clause. The "interstate commerce clause." The "necessary and proper clause." The failure to provide a legal means for withdrawal from the Union--leaving it to violence. The failure to clearly provide for resolution of constitutional controversies of interpretation--already a disaster by the time of Marbury v Madison.
In the Bill of Rights, the 2nd amendment with its superfluous introductory clause regarding the militia. Why confuse the issue with this unnecessary justification? The muddy language of the first amendment--"establishment of religion." The fourth amendment with its completely vague and unsatisfactory language--"unreasonable" searches. I could go on.
Beyond that, our nation is like a boat encrusted with the barnicles of history, and needs to be retired. This nation paid dearly for its sins. The sin of slavery and apartheid led to the Civil War, which destroyed whatever semblance of state sovereignty remained at the time. The Jim Crow laws of the South led to federal usurpation of power and judicial legislation. The expansion into the West, where, let's be honest, the native tribes got shafted, gave us a republic far too big to manage. And there's this thing called stare decesis. We have centuries' worth of judicial decisions that will not be overturned. More barnicles. More baggage we can't get rid of.
It's time for a fresh start. A new country. Conservatives cling romantically and nobly to a Lost Cause,just as the Confederates did back in the day. I don't know when and if the opportunity to start again will happen. It may never happen again.It may take centuries. But only a fool makes the same mistake twice. A better system would have been far less centralized than what we got. It would not have created the beast that torments us. The antifeds were right. The framers were wrong.
Saying it would work is like a coach saying his game plan would have worked if he'd had different players. Well, that dog won't hunt. You have to have a game plan that works WITH the players you have. And anyway, if your players can't hack it, it's still a failure, whatever the cause.
In the meantime, we play around at the margins, while the battle has long since been lost.
The... premises on which the new form of government is erected, declares a consolidation or union of all thirteen parts, or states, into one great whole, under the firm of the United States... But whoever seriously considers the immense extent of territory comprehended within the limits of the United States, together with the variety of its climates, productions, and commerce, the difference of extent, and number of inhabitants in all; the dissimilitude of interests, morals, and politics in almost every one, will receive it as an intuitive truth, that a consolidated republican form of government therein, can
never form a perfect union, establish justice, insure domestic tranquillity, promote the general welfare, and secure the blessings of liberty to you and your posterity, for to these objects it must be directed: this unkindred legislature therefore, composed of interests opposite and dissimilar in nature, will in its exercise, emphatically be like a house divided against itself...
From this picture, what can you promise yourself, on the score of consolidation of the United States into one government? Impracticability in the just exercise of it, your freedom insecure... you risk much, by indispensably placing trusts of the greatest magnitude, into the hands of individuals whose ambition for power, and aggrandizement, will oppress and grind you where from the vast extent of your territory, and the complication of interests, the science of government will become intricate and perplexed, and too mysterious for you to understand and observe; and by which you are to be conducted into a monarchy, either limited or despotic
-George Clinton
And by the 6th article, it is declared "that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding."
It appears from these articles that there is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States.
The government then, so far as it extends, is a complete one, and not a confederation. It is as much one complete government as that of New-York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with respect to every object to which it extends, as any other in the world. So far therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.
The powers of the general legislature extend to every case that is of the least importance — there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given. The legislative power is competent to lay taxes, duties, imposts, and excises; — there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes, and duties shall be applied, may be said to be a limitation: but this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and provide for the common defence and general welfare of the United States; but the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defence, and they only are to determine what is for the general welfare; this power therefore is neither more nor less, than a power to lay and collect taxes, imposts, and excises, at their pleasure; not only [is] the power to lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they please.
No state legislature, or any power in the state governments, have any more to do in carrying this into effect, than the authority of one state has to do with that of another. In the business therefore of laying and collecting taxes, the idea of confederation is totally lost, and that of one entire republic is embraced.
Brutus