How the Founders Would Write the Constitution Today

There has been, often will be, much debate about what the Founders intended when they wrote the Constitution.  Some feel that they meant it to be a very flexible document that would entrust modern day governments to use as a tool to promote societal well-being.  Others believe that they intended to create a very limited government whose only purpose is to protect the natural rights of it’s citizens.  

If the Founding Fathers had perfect foresight of American history through 2005, how would they modify the Constitution to give it greater resilience to their original intentions?  There are obviously some things that would not be changed; they wouldn’t have modified their stance on slavery – it was a necessary compromise.  They also wouldn’t have added universal health care – the concept would have been completely foreign in the 1700s.

The first change that I think is immediately obvious is that they would incorporate the Bill of Rights into the Constitution.  The counter argument – that everything necessary to protect any individual’s right to liberty is contained within the ‘Privileges and Immunities’ clause has proven itself false time and time again over the last 130 years.  If I wanted to be cute I would say that they would also add “and we really mean it” and the end of each of the enumerated rights, but I don’t think that would even go far enough.  They would be more precise with the language so that there was little doubt with what they meant.  By looking ahead 230 years they could easily see what rights have been eroded and modify the articles appropriately.

The second thing that they would change would be to further limit the Executive Power.  The Founders intended the President to be little more than a figure head, I think they would be appalled that Presidents have as much power as they do today.  In order to limit that power they would need to directly address executive orders, defining their specific intent and purpose and define, precisely, how they may be used.  They would also define what duties the “Commander in Chief” actually had.  I seriously doubt that they intended a single man be allowed to wage an armed conflict (yet not a war) without the full consent of the Congress.

The Constitutional Congress would also restrict the powers of Congress by clearly defining what they mean by the power “To regulate Commerce.”  I personally believe that they intended that clause to allow Congress to prevent states from using tariffs and other similar barriers amongst themselves to enact protectionist policies.

The last item that I think would be an obvious change would be to close any open ended powers of government such as “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;” that could be interpreted creatively to justify a broad set of legislation and spending.  

The Founders feared a powerful government and wanted to create a document that would avoid government from becoming all powerful.  Unfortunately, they failed in that goal and given an opportunity to try again, I think that they would have erred on the side of too little power over too much power.