With the death of Antonin Scalia, many conservatives and libertarians have been lamenting the political power shift within the federal judiciary. However, few people have been lamenting the Constitutional review powers of nine unelected lawyers with a Judicial power they were never intended to have.
Think about it: why would the states and the people create a document expressly limiting the federal government, and then grant it to sole to power to restrict itself?
Did the framers intend to create a document that safeguarded already existing individual rights and the sovereignty of the states from an entity it deemed the sole arbiter of those rights?
“We the people of the United States, in order to form a more perfect union…”
That sentence outlines who is sovereign OVER the Constitution, the former half, the collective people, and the latter half, the states. The framers formed a union, not a nation. That is very important to remember.
Many agree that Scalia was a great Justice, but some forget his decision in Gonzales v. Raich, allowing Congress to regulate “local cultivation, possession and consumption of marijuana.” Scalia, it could be reasoned, didn’t want to violate stare decisis–a principle of adhering to precedent instead of the original intent of the framers. In this particular case, the precedent set in Wickard v. Filburn, a decision that virtually eviscerated the interstate commerce clause and giving the federal government the power to regulate intrastate commerce.
Judicial review means that cases like Dred Scott (owning people as property, and playing large part in starting Civil war), Plessy (separate but equal/Jim Crow) and Korematsu (the internment of American citizens) will become law through fiat, essentially amending the Constitution without the input of the sovereign states and the people. Stare decisis, on the other hand, will ensure that even Judges of differing political persuasions in the future will be reluctant to change it.
Robert Bork once quipped about the Dred Scott case, “There is something wrong… with a judicial power that can produce a decision it takes a Civil War to overturn.”
Considering our President and the historical judicial activism of the left, his activist appointees to federal district courts and to the SCOTUS, I don’t think I’m going to far to say our republic is at stake.