Thursday, May 3, 2012

Defending our Liberty: A Practical Guide

Recently, on my 'Defending our Liberty: Why Not SCOTUS?' article, a comment asking how a Constitutional Review that did not involve SCOTUS would work, as a practical matter.  So, after giving it some thought, I decided to do a full post on some practical considerations.

The first thing to note is that I am not actually against the Supreme Court providing Judicial Review.  I am against the Supreme Court being the final arbiter of what is Constitutional.  That is, I believe it is both a power and a duty of every branch of the Government to determine whether a given law, presented before it, is Constitutional.  The Legislative Branch should give such consideration before voting for a bill, the Executive should make its determination before deciding to approve or veto a law, and, if presented with a case, the Judicial Branch should make its decision as well.  However, I do not believe the Federal Government should have final say in what powers the Federal Government should have.

In that previous post, I said that I believe the power of Judicial Review to be unconstitutional itself.  And, indeed, I do.  However, as a practical matter, it would be naive, at best, to presume that the Judiciary would allow itself not to have a power which the other branches enjoy.  Further, it has become apparent that such power is necessary.  That said, I do not believe that the power should end with the Judiciary.

Consider a council, established by a group of parties- say, a home-owners association.  That council has some powers granted to it by its charter, and within those powers has a great deal of authority.  If the people represented by that council disagree with decisions, they have a variety of avenues of recourse- from running for a spot on the council, to forcing an amendment of the by-laws, to even disbanding the association all together.  The association does not, however, have the power to determine what powers it has.  It cannot vote to grant itself authority over what one builds in ones back-yard if that authority was not granted by the original charter.  In the case of the Supreme Court taking the power of Final Judicial Review, that is exactly what we have happening, however.  The Federal Government has granted itself the power to police its own powers.  In what other case of contract law could you find that?

So, as a practical matter, how should Constitutional Review work?  I see two possibilities.  The first is both more likely to be done, and less likely to work.  The second is less likely to be established, but more likely to work if it were.

The first option, being pursued now in some form, is the idea of 'State Nullification.'  This idea is that a State can pass an amendment to its own Constitution granting it the authority to nullify any Federal Laws it believes are unconstitutional.  For any given law, then, the State would pass a statute declaring that law unconstitutional, and unenforceable within its borders.  This runs into practical problems very quickly.  For instance, if Texas were to pass a law nullifying the current Health Care law, how would that work?  And how would individual citizens be protected from harm from not complying with the law themselves?  The issue would quickly escalate into a Constitutional Crisis.

Whatever problems it has, however, it is fairly easy to implement (since each individual state can do it 'on its own').

The second option is the idea of formalized State Review.  This would require one or more amendments to the US Constitution.  First, the 17th Amendment would have to be repealed.  The Senators, once again representing their State Governments, instead of being- essentially- "at large" Representatives, would then have good reason to ensure the power of the States was maintained.  Then, a further amendment would have to be passed (optionally- part of the amendment which repealed the 17th) which would formalize a process whereby the states could declare something unconstitutional- if enough of them did so in a predefined time frame, then the law in question would be stricken.

This would require at least one, and probably two, amendments to our Constitution- something which is very difficult to do once.  However, if it were done, there would be no Constitutional Question of who the final arbiter of Constitutionality is- it would return where it rightly belongs: to the States.


  1. The power of Judicial Review is simply a recognition that the Court has declared how they will rule on any appeal on a particular law brought before them. They are saying don't bother to prosecute cases since we will simply overturn them.

    Nothing stops the Executive from ignoring that, in effect saying that their ruling only applies to the case at hand, which is true. Lincoln did this by the way but mostly, the Executive heads the warning.

    1. No, it's not. That may be how they justify it, but they are declaring whole laws unconstitutional, and those are two different things. In the first case, a different court might decide differently. In the second (actual) case, a legitimately enacted law is stricken from the books.

      Now, I do sort of agree that SCOTUS has that responsibility, just like the Exec and Leg do. The biggest problem is the theory (currently held) that ONLY SCOTUS has that power and responsibility.

  2. but they are declaring whole laws unconstitutional, and those are two different things. In the first case, a different court might decide differently. In the second (actual) case, a legitimately enacted law is stricken from the books.

    I don't see the distinction you're making. The laws aren't actually "stricken from the books", they just become unenforced, and by the courts thinking, unenforceable.

    I think a new bill that modifies the existing "stricken" law has the standard form of replace-this-with-that after-x-add-y etc.

    Of course, I don't play a Congressman, even on TV.