Sometimes I hear that we need to replace the Constitution with one that would do a better job of limiting government and protecting individual rights. But I think that would be a very bad mistake. Why? Surely the Constitution has failed. It was supposed to delegate a limited set of powers to the United States. The individual States were to keep their sovereignty. And the United States was supposed to protect individual liberty. Not one of these aims has been realized. The government has expanded into a monster that involves itself in nearly every aspect of our lives. States have lost or handed over their sovereignty to the central government. And individual liberties are now secondary to the so-called compelling interests of the government.

But we should consider why the original Constitution has failed before we consider adopting a new one or radically changing or amending the existing document.

So why did the Constitution fail? For at least three reasons:

  1. It was illegitimate from the start.

  2. It is not, and cannot be, self-enforcing.

  3. It suffers from the scaling problem.

The Constitution was illegitimate from the start because it was produced by a convention called to modify, not replace, the Articles of Confederation. But even more importantly, a constitutional convention cannot claim to represent the wishes of the people, even if its product is to be voted on by the people. What principle legitimizes such a constitution if even one person votes against it or refuses to be bound by it? What majority (or even minority) legitimizes a government? Twenty percent? Fifty percent plus one? Sixty percent? Seventy? Ninety-nine? And who decides what majority is legitimizing? The convention itself? By what authority or moral principle?

The second reason for the Constitution’s failure is that documents are not self-enforcing; they require a commitment on the part of people to uphold the ideas expressed by the provisions in the documents. From the very beginning, the Supreme Court, the Congress and the President sought ways to enlarge the power of the central government at the expense of the states and individuals by reading new meanings into the Constitution. Probably the critical turning point was Lincoln’s success in preventing the South from seceding from the Union, thereby reversing the power relations established in the Constitution between the states and the central government.

The third reason for the Constitution’s failure is that it was an attempt to set up a government over too great an area of land and too large a number of people. What might work in a small group of people in a small area does not necessarily work in a larger group or area. This is the obvious, but hardly ever mentioned, scaling problem of government and I think it is a major reason for the failure.

So, a new or radically modified Constitution would suffer from the very same problems that sank the current Constitution. And even if it were possible to create a "more perfect" document, the problem would remain that there is no significant penalty for government actors when they disobey the Constitution and there is no way to predict every possible means for circumventing provisions in any Constitution.

Freedom cannot depend upon documents or a belief in the good intentions of so-called leaders. The only way to allow freedom is to restrain all collective power, no matter how dressed up it may be to appear as something good for you. And constitutions are just formalized justifications for collective, centralized power.