Okay, I’d like to see a bit more detail in your argument. It seems to me that you’re holding the Constitution, vs. the government, to different standards. The Constitution allows the invasive statism that exists at present, but it does not require it. The Constitution thus has clearly failed – though I think unpredictably so – because it allows the current socialism and statism that pervades America. The limits on governmental power spelled out in the Constitution are really minimal. The Constitution does not articulate a clear vision of individual liberty and capitalism – just consider the Welfare clause and the Commerce clause, and what hell has been visited on us because of them. I don’t entirely blame the framers (not having the specific historical knowledge needed to make such a judgment). But the fact of the matter is, the Constitution should have contained Anti-Welfare and Un-Commerce clauses which directly state that these are not the concern of the government. There’s no question that the people in government have to take the rap for the fact that we have such attrocities as the Taft-Hartley Act: but equally, the Constitution has to take the rap for allowing these laws.
Now: if you have an argument that there are acts performed by the state in clear violation of the Constitution, then that’s worth pursuing (and cc Scalia, just in case he decides to care). We really need to see the argument that the actions of the government undeniably violate the Constitution.
If one studied the historical circumstances that gave rise to each power, including the power “to regulate commerce … among the several states”, you’ll know that it wasn’t a socialist-style centrally-planned economy that the Founding Fathers had in mind. That power was given to Congress so that it could eliminate the disastrous trade barriers (customs, tariffs, duties, etc.) between the states and “make regular” (i.e., uniform) all laws affecting trade among the states. (“to make regular/uniform” was the original meaning of “to regulate”.)
The “welfare clause” was also distorted far beyond what it originally meant:
“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” (emphasis mine)
–James Madison
“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” (emphasis mine)
–Thomas Jefferson
In other words, the welfare clause does not mean providing free healthcare, public education, unemployment insurance, retirement pay, etc.
The Founding Fathers could not have added a clear vision of individual rights and capitalism. I mean, the idea was so new at the time that they barely had a grasp of it. But I would still argue that individual rights and capitalism are implicit in the Constitution, particularly in the sections limiting the powers of the government, enumerating individual rights and property rights.
And as for “capitalism”, there was no such thing then. Most nations were feudalist, with the overwhelming majority of the population living as subsistence farmers, ruled by a hereditary sovereign. The Industrial Revolution had just barely begun in Great Britain–which was then a mercantilist. I hazard to say that the Founding Fathers inadvertently invented the capitalist economic system by establishing a government that enforced (albeit inconsistently) laws protecting individual rights, including property rights.
I wouldn’t call the Constitution a “clear failure”. If you ignore the historical and linguistic context that qualify the meaning of every word in the document, if you ignore the whole text and focus on just one clause or word, then yes, you can interpret (as judges do today) the Constitution to mean practically anything.