At the New York Times' Room for Debate site, the question is asked, "If the U.S. Constitution were being written today, what would you omit, add or clarify?" The answers from some of the participants are just awful -- do away with the Electoral College, get right of the right to bear arms, allow naturalized citizens to be president. Some are interesting -- clarify what's cruel and unusual. amend the Commerce Clause, rewrite the First Amendment.
The one who gets it most right is Elizabeth Price Foley, law professor at Florida International University College of Law. Don't change the text, she says, just bring back federalism:
To some, the F word is constitutional obscenity. It is relabeled "states' rights" and followed by reference to slavery and the Confederacy. This taps into deep emotions but is utterly wrong.
Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.
The powers "reserved to the states" under the 10th Amendment are functionally nonexistent if the Constitution's carefully enumerated powers are infinitely capacious. So while the 10th Amendment doesn't tell us what powers belong to the states, its message is clear: preserving federalism requires vigilant enforcement of limited and enumerated powers.
Power tends to accumulate -- our founders realized that, which is why the Constitution so deliberately tries to diffuse power and put anybody with it in a system of checks and balances. If they could have realized that those safeguards would be worn down over time (and perhaps they should have), they might have included some mechanism to prevent it. So I guess that's what I would change, although I'm not sure what kind of safeguards there could be. The suggestion to amend the Commerce Clause is a start, since liberal interpretations of it have contribubed so much to the expnasion of federal power. And maybe we should look at the "Necessaryand Proper Clause" to make it a little less vague and elastic.
