Frustratingly, all the points you make are valid ones. And so it would seem we are faced with a can’t-win situation. But on a philosophical level, I think it is possible that the ‘commerce’ clause could be ‘re-interpreted’ to mean commerce between only state governments and not private enterprise. Or perhaps some other more rational meaning. The same with the necessary and proper clause.

There have been times in the past that the Supreme Court has knocked down legislation on the grounds that it violated or contradicted the spirit of the Constitution. If the spirit of the Constitution can be identified explicitly as ‘man’s right to live for his own sake’ then why couldn’t the SC rule that any Article found to contradict that spirit can and should be ammended to bring it in line with individual rights? I also think a vigorous advocacy of individual rights could drum up wide spread support for this in time.

The concept of individual rights needs to be hailed loudly and incessently to the people. They need to be told that they have a right to their heated homes in the winter and cooled ones in the summer; that it is their right to own an SUV, an HD TV and to be x pounds overweight if they want. I think a lot of public support for rights can be had if advocated properly.

IMO, the Constitutional contradictions will have to be corrected someday but I don’t see how that can happen as long as altruism dominates the culture. Then again, showing people how individual rights are both practical and moral could have an effect.

First of all, the Constitution grants the government the authority of ammendment. In theory, any clause or ammendment can therefore be overridden (this is also a virtue in some cases).

Second – what corrupts the Constitution is its notoriously non-objective clauses: the necessary and proper clause and the commerce clause. These clauses are not clearly defined and therefore may be interpreted to defend extraordinary abuses of power, a la New Deal.

Thus an argument that bill x violates the first or second amendment can be countered with the argument that bill x is demanded by “necessary and proper” or “commerce.” This, I suspect, is what Ayn Rand alluded to when she held that the Constitution contained contradictions which doomed it from the start.

Now it might be countered that the federal government does possess the self-restraint to refrain from abusing the clauses.

Well, if this were true, why isn’t the Supreme Court up in arms about the AIG tax? The congressional tax on AIG retention contracts is after all an excellent example of ex post facto law. But it appears that the power of the clauses has become so great that the impetus among SC justices to strike down unconstitutional bills has become irreparably reduced.

I believe this would be a great time for some minor party to rise up. Unfortunately if that does happen, it will probably be the wrong one.