Here is a thought experiment: Suppose that we could rewrite America’s two founding documents, the Declaration of Independence and the Constitution. Some people believe that both (but especially the Constitution) are flawed in their emphasis on individual rights and the need to restrict government power. They have in large measure overcome those supposed defects through judicial interpretations of the Constitution to expand the scope of government authority, so this thought experiment probably wouldn’t interest them. Other people, however, think that the two documents didn’t go far enough in defending people’s liberty and keeping government within proper bounds, and they would want to rewrite the documents to strengthen those protections.

In the latter camp is Brian Simpson, who chairs the Department of Accounting, Finance, and Economics at National University in LaJolla, CA. His book, A Declaration and Constitution for a Free Society, analyzes both documents line by line, focusing on whether they serve to protect individual rights.

Simpson is a proponent of Ayn Rand’s philosophy of Objectivism, which holds that the only function of government should be to protect people’s rights, not to pursue “social justice,” environmentalism, racial equality, or any other goal that calls for the use of coercion against peaceful individuals. Simpson holds the Declaration of Independence and Constitution in high regard as history’s first and greatest efforts at crafting a government that protects its citizens rather than aggresses against them. But, he argues, the documents could be improved.

The Declaration / The Declaration of Independence needs only minor modifications, in Simpson’s view. First, he would remove all its religious references, arguing (as one would expect from a Randian) that we should not rely on superstitions when we set forth the case for an ideal government. His stance against religion might cause some readers to shut the book in annoyance because his language is rather abrasive, but that would be a mistake. Theists and a‑theists should not fall out over their differences when it comes to government, which, as Simpson makes clear, must protect the rights of everyone to practice religion or not.

The other change he would make to the Declaration is to specify that property rights are as unalienable as life, liberty, and the pursuit of happiness. “Man’s ability to survive and flourish,” he writes, “fundamentally depends on the protection of property rights.” It is just as important for government to protect a person’s use of his property as his life, his liberty, and his pursuit of happiness.

The Constitution / Turning to the Constitution, Simpson would add a sentence to the Preamble stating that the only proper function of government is to protect individual rights and freedom. Also, he’d eliminate the phrase “promote the general welfare” because the job of political leaders is to protect the freedom of each person to peacefully live as he chooses, not to try to legislate for the “general welfare.”

In Article I, Simpson would eliminate the age restrictions for election to the House and Senate, arguing that any person who has reached legal adulthood should be allowed to serve. His point is that the Constitution should stand for legal equality, which is violated by arbitrary age requirements of 25 and 30 years, respectively.

Of far greater importance are the changes he recommends for Article I, Section 8, which enumerates the powers of Congress. Here again, we find the phrase “for the general welfare.” He correctly notes that the drafters of the Constitution did not mean by that to give Congress authority to do anything that they thought would be beneficial for the country as a whole, but the Supreme Court has held that rights-violating laws such as Social Security are constitutionally valid under this General Welfare Clause. Simpson regards those decisions as politically driven mistakes; therefore, the clause must be stricken.

Next, Congress should be deprived of the power to tax. Simpson views taxation as unjustified coercion that deprives people of their property. Instead of taxation, he would rely on voluntary payments by individuals and businesses. In 2018, he observes, Americans donated some $428 billion to charities; if they weren’t subject to the current load of taxes, they could and presumably would give large sums of money to the federal government. Simpson doesn’t go so far as to say that voluntary donations would make up for the loss of tax revenues in full. He also doesn’t address the “free-rider” problem that would likely result. The government would have to dramatically scale back many of its expenditures — and that would be good because much of what it does is inconsistent with its job of protecting people’s rights.

While on the subject of money, Simpson would eliminate Congress’s power to “coin money and regulate the value thereof.” With no power to create money, the government would have to utilize whatever money or monies come about on the free market. He would, however, give the government power to declare which of those monies are legal tender. That, it seems to me, is a mistake. Though government should be able to determine what money it will accept as payment, it should let individual transacting parties decide what money they will use.

While on the subject of money, he would stipulate that Congress has no authority to lend. That is wise. Even though the Constitution never granted that authority, Congress doles out enormous sums to students, businesses, home purchasers, and others. Politicians are prone to taking foolish risks with funds and the law should forbid it.

Perhaps the most important change Simpson proposes is eliminating the Commerce Clause, which enables Congress to “regulate commerce among the several states.” The intended meaning was to keep commerce “regular” among the states, not allowing them to pass laws that impede trade across state lines. It was not meant to give Congress plenary power to dictate the details of business operations, but that is exactly how things have turned out, owing to a string of Supreme Court decisions. The Commerce Clause has been used to justify a vast array of federal mandates and prohibitions upon business. It should be stricken.

Another power of Congress that he would retain but I think is unwise is the power to confer patents and copyrights. Simpson supports this power because it gives people legal right to their writings and inventions. Many scholars have, however, argued that patents and copyrights do more harm than good by obstructing innovation and creativity. Rather than protecting property, they create privileges enforced by the state. At the very least, this power should be carefully scrutinize and debated.

The Amendments / In the rest of the original Constitution, Simpson suggests only a few minor revisions. In the amendments, however, he takes out his pencil — and his eraser.

The First Amendment needs to be improved, he argues, by specifying that the government can make no laws impinging upon freedom of association, which includes the right not to associate. With that language added, laws that compel association, such as those against single-gender clubs and those that require workers to be members of a labor union, would be unconstitutional. Also, Simpson would rewrite the amendment so it clearly protects commercial speech, an area where the courts have been remiss.

He would revise the Second Amendment to make clear that it protects the right of individuals to own firearms. He would eliminate the confusing language about “well regulated militias” that has opened the door for gun control advocates to claim that the amendment does not ensure the right of individuals to own weapons for self-defense, hunting, or other lawful activities.

The Fifth Amendment allows the government too much power, Simpson argues, by sanctioning the taking of private property. Eminent domain has been widely abused, as in the infamous Kelo case where private property was taken so that it could be transferred to a commercial enterprise that was expected to generate more tax revenue than the homes that were occupying the ground. Rather than attempting to separate permissible taking from impermissible ones, Simpson would ban all of them. He argues that little harm will be done if the government must forgo some projects because it cannot get all of the property owners to sell without coercion.

The Fourteenth Amendment was supposed to protect people against actions by state governments that violate their rights. The language it uses, however, refers to actions that “abridge the privileges or immunities of citizens of the United States.” That language proved to be woefully inadequate, as the Supreme Court (in an 1873 decision) read it as applying only to the small number of “privileges or immunities” recognized as exclusively federal. Simpson’s solution is to rewrite the amendment so that it prevents state and local governments from violating the rights of individuals.

As for the Sixteenth Amendment, allowing the federal government to impose income taxes, it must be repealed entirely.

The Twenty-First Amendment repealed the disastrous Eighteenth, which imposed Prohibition of alcoholic beverages. Even so, the Twenty-First Amendment must be changed. Simpson points out that Section 2 of the amendment permits state and local governments to continue interfering with the market for alcoholic beverages. That must go.

So should the Twenty-Second, which limits presidents to two terms. Simpson thinks that term limits are an arbitrary and ineffective means of controlling “excessive” government power (which would be better accomplished by adopting his proposed constitutional changes). If the electorate wants to re-elect a president who has already served two terms, they shouldn’t be prevented from doing so.

He then urges the adoption of several new amendments to further protect people’s rights against government encroachment. Among them would be a prohibition on laws that interfere with the freedom to produce and trade (which would make such measures as occupational licensing and minimum wage laws unconstitutional), an amendment stating that each individual has the right to control his own body (making laws against the use of drugs or laws mandating vaccinations illegal), and an amendment against government ownership of or financial assistance to business of any kind (thus eliminating a wide swath of what the government now does, including Social Security and educational subsidies).

Lastly, Simpson would create a new amendment specifically prohibiting all units of government from creating money or issuing bills of credit. This he combines with the existing constitutional language that the government may not “impair the obligation of contracts.” On that last point, I don’t think he goes far enough. Despite that language, units of government have done great damage to the law of contracts, for example by declaring that labor contracts must contain certain elements and may not contain others. I think that a more robust amendment against any and all government interference with people’s freedom to contract is in order.

Conclusion / This is certainly an interesting thought experiment, but is it a useful one? I think so, and as more than an intellectual exercise. Obviously, one or more of Simpson’s ideas might gain some public support and eventually become amendments, just as 27 other ideas already have.

Beyond that, newly formed countries may look to his book for ideas as they craft their constitutions. And, as dramatic as this might sound, the current divisions roiling the United States may open the way for a broader rewriting of the Constitution, in the hope of easing the bitter social battles. Simpson’s book offers some good ideas for how to do this.