Was the Constitution Flawed from the Start?

In a recent meeting with the John Locke Foundation college interns, I asked them how has America regressed from a limited government in 1789 to a government with few limits today? They answered that the most important change was usurpation of power by federal power at the expense of the states.

Then I asked them how did this happen? They correctly noted that the US Supreme Court, starting with the New Deal, has continually granted the federal government more and more power.

Then I asked if there was a flaw in the Constitution that allowed this to happen? This was a more difficult question since many college students are not taught the meaning of the original Constitution. Liberal professors are too busy teaching them the Constitution as a ?living document.? After some coaxing, the students noticed that the US Supreme Court, which is the arbitrator of the line between the states and the federal government, is part of the federal government. Thus, the Court might be biased to increase federal power at the expense of the states because when federal power increases the power of the Court also increases.

Then I asked if this flaw was unforeseen by the Founders? The consensus was that it was unforeseen because if they had realized that there was a flaw they would have fixed it. But I pointed out that Madison recognized this potential problem in Federalist #39. ?It is true that in controversies relating to the boundary between the two jurisdictions [state and federal], the tribunal [the US Supreme Court] which is ultimately to decide, is to be established under the general government [the federal government].? But Madison argued that the potential bias of the Court in favor of the federal power would be counteracted by two factors. First, the Constitution contains an appointment process for justices that would help to insure the Court?s ?impartially.? Second, the Constitution (Article I, Section 8) specifically and emphatically limits the federal government?s power ?to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.? (Emphasis added)

Unfortunately, Madison and the other Founders never envisioned the rise of the counter-revolutionary Progressive Movement that set out to destroy the Constitution and the emergence of Constitutional law captive of the ?living document? idea.