Confronting Judicial Review If the states are to have any hope of recovering their constitutional sovereignty, they must

be prepared to confront judicial review, a doctrine that federal courts regularly invoke to “interpret” the Constitution out of all meaningful existence and interfere in matters that are none of the federal government’s business !he truth of the matter is that judicial review does not entitle the courts to alter or update the Constitution to suit modern times, considering that "rticle # frames the amendment process and says nothing about judges who deliberate in secret Instead, "rticle # re$uires supermajorities among the state or federal legislatures to implement constitutional change, and for far too long the courts have usurped this awesome power for themselves It has to stop now " typical apologist for judicial excess will reflexively cite Chief %ustice %ohn &arshall’s '()* opinion in Marbury v. Madison +y doing this, the apologist attempts to cloak himself with the prestige of "merica’s early years and portray the critic as beyond the pale of respectable discourse ,et %ohn &arshall declared simply that the court would follow the Constitution rather than a contrary statute- he did not declare that the court may alter the Constitution to suit changing times, and he did not declare that the court’s interpretation of the Constitution binds anyone other than the litigating parties or the lower courts !he true radicals are the ones who cite Marbury to anoint the court as ultimate arbiter of the Constitution for every man, woman, and child across the land .o such status is warranted under Marbury or the "merican experience /roperly understood, judicial review is only a tool that courts use to perform their narrow function0 if a statute is held unconstitutional, the ruling court and the lower courts will thereafter refuse to enforce the statute to resolve a case or controversy brought before them This does not obligate the rest of America to agree with the ruling court’s interpretation If anything, those who swear an oath to uphold the Constitution have a solemn duty not to treat erroneous judicial pronouncements as the law of the land, for the Constitution is superior to the opinions of a single branch of the federal government 1which is the very point that %ohn &arshall was trying to make2 "braham 3incoln understood this when declaring that the 4upreme Court’s opinion in Dred Scott v. Sandford would not be allowed to resolve the explosive $uestion of slavery +efore that, "ndrew %ackson famously refused to enforce a controversial opinion by none other than %ohn &arshall concerning the Cherokees in 5eorgia If the author of Marbury v. Madison could not expect everyone to adopt his views, the would6be inheritors of his legacy cannot demand the same from us today !he notion that a mere five votes out of nine on the 4upreme Court may amend a Constitution whose own terms re$uire nationwide supermajorities is ridiculous as well as repugnant Contrary to all this, the modern 4upreme Court presumes that its opinions are indeed superior to the Constitution 7iding a wave of idealism during the civil6rights era, the court proclaimed in Cooper v. Aaron that “the interpretation of the 8ourteenth "mendment enunciated by this Court in the Brown case is the supreme law of the land ” 19mphasis added 2 :therwise stated, if the court declares that down is up, left is right, and black is white, then all of "merica is obligated to agree !his judicial hubris is

drilled into law students on a regular basis, many of whose professors eschew teaching the 8ederalist /apers or any other source of true insight into the Constitution’s meaning and purpose !he end product is a legal and political class that has abdicated its duty to understand, and thereby uphold, the supreme law of the land "nd this cavalier disregard runs across the ideological spectrum !o cite merely two examples, for every leftwing contortion of the 8irst "mendment to outlaw religious expression, there is a rightwing contortion of the 8ourth "mendment to intrude on the right to be free of unreasonable searches and sei;ures It ama;es me that politicians have not appealed to populist sentiment on an issue as important as this <henever faced with the trite declaration that the Constitution is a “living document” that must change with the times, the slam6dunk response is0 “,es, and we the people are the ones who have the right to change it, not nine people meeting in secret ” %udges who presume to know how the Constitution must change, and further presume that they may enact such change without seeking "merica’s approval, are unfit for office +ut this is par for the course with a federal government that presumes it knows better than we do how to spend our money, educate our children, or generally pursue our happiness !his will not last because an organi;ation that ignores its founding charter also destroys its own legitimacy 66 if government refuses to obey the law, what reason do the people have to obey the government=

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