When it comes time to determine whether the federal government of the United States (FedGov) is acting constitutionally in any given situation, the issue is very simple: What does the Constitution say? If the power being exercised by FedGov is not one granted by the states to FedGov, then FedGov is acting unconstitutionally. Simple, really.
Except, of course, that reasonable people can and do disagree on what the Constitution says and means. Some will read it narrowly while others will read it as granting much broader powers to FedGov. When there’s disagreement then, who should decide? We can’t just toss a coin (though I would argue that we’d be better off with a coin toss than the current system, which heavily favors FedGov).
Who gets to decide (more importantly, who should decide) what the Constitution means? To answer that question we must first answer another:
Who’s the boss? Who’s in charge?
Is FedGov the “boss” of the states or are the states the “boss” of FedGov?
I am of the opinion that the states, having created FedGov and having set forth the rules for its operation (that’s what the Constitution is — rules for running FedGov), are the boss of FedGov.
It seems unlikely to me that the states would have created FedGov, intentionally making FedGov its own boss and thus giving it, essentially, unlimited powers. Bosses, after all, can make the rules. The hired help is supposed to follow them. FedGov is just the states’ hired help. The hired help should not be making the rules or deciding what they mean. The boss should do that.
The system we have now has the Supreme Court Of The United States (SCOTUS) exercising “judicial review” of the laws and regulations of the Legislative and Executive branches of FedGov. Any challenges to FedGov’s laws have to be made through FedGov’s own Judicial branch. Not surprisingly, FedGov most always finds that its laws are “constitutional” and it is very rare indeed that SCOTUS strikes down challenged laws.
A point I cannot emphasize enough is that, in exercising “judicial review,” SCOTUS is itself acting unconstitutionally. Judicial Review is not a power granted to FedGov by the states. That makes exercise of that power unconstitutional — against the bosses’ rules.
If judicial review is unconstitutional, how does SCOTUS get away with it? The answer is Marbury v Madison, a landmark case from more than 200 years ago in which SCOTUS set forth a rationalization for assuming this new power.
In Marbury, the Supreme Court explains that, while they were not able to find the actual power of Judicial Review anywhere mentioned in the Constitution, they nonetheless found it in “the particular phraseology of the constitution…”
‘The power is not actually there, but we can sense it,’ said the court in Marbury. They may as well have held a seance and then announced that the spirit of the Constitution appeared to them and told them what they hoped to hear. This is pretty much the justification given by the Supreme Court for all subsequent expansions of FedGov power: “We know it’s in there; we can feel it.”
The states created FedGov and gave it rules by which to operate (the Constitution). The states are the ‘boss’ of FedGov — all of FedGov, including SCOTUS. It’s about time the states started acting like it.
We can’t go on letting FedGov make its own rules. SCOTUS has been complicit, nay, instrumental in FedGov’s ceaseless expansion of exercised powers. FedGov’s legislative and executive branches seize powers not granted to them by the states in the Constitution and FedGov’s Judicial branch upholds these usurpations, finding them “constitutional.”
The Constitution’s “checks and balances” prevent any one branch of FedGov from becoming too powerful. But there is no protection for the States and the People, when the Legislative, Executive and Judicial branches, acting in concert, usurp powers rightly reserved to the States and the People by the Tenth Amendment.
The states, who should have been keeping FedGov in check since its inception, have let Marbury v. Madison’s precedent take hold and have sat idly by for more than 200 years while their own reserved powers have been slowly drained away. The states seem to mistakenly believe that decisions regarding constitutionality are “above their pay grade.” The states don’t seem to realize that they are the “boss.”
Our entire body of “constitutional law” is based on the fiction that FedGov is its own boss. It’s time that the real bosses, the states, exercised control over FedGov as they should have been doing all along.