Virginia federal Judge Henry Hudson recently struck down the mandate provision of the Federal Health Care Law, contending that penalizing citizens for not purchasing a product is not within the authorities granted to the federal government, and is therefore unconstitutional. However, since judicial review is not a power granted by the Constitution to the judiciary (all legislative powers belong to the U.S. Congress as per Article I, Section 1 – and that includes the ability to strike down law), Judge Hudson’s ruling was technically unconstitutional. Had the judge not ruled on the Health Care Law, however, it would have enabled an unconstitutional provision to stand, since the Congress has no intention to act in a constitutional manner and repeal any unconstitutional law. But, since no other tools are readily available to stop the federal government from acting in an unconstitutional manner, save for the States using nullification, using the court’s unconstitutional power of judicial review is the only way for conservatives to stop the leftist controlled federal government from enacting unconstitutional law in its quest to fundamentally change the American form of government into something the Founding Fathers never intended it to be.
When I posted an article regarding Judge Hudson’s ruling, a liberal commenter was quick to point out that my support of the decision by the Virginia judge is inconsistent with my stance that judicial review is not a power granted to the courts by the U.S. Constitution.
A person could go crazy attempting to reconcile all of this.
The fact is, our American system is under assault. The liberal Democrat Party has launched a war against liberty, and have changed the rules to achieve their means. Then, when their opposition challenges them, they simply use their twist of the truth to combat any challenges.
Political war is not pretty, and the unfortunate fact is that to save our nation from the Marxist onslaught by the American liberals, we must use the tools available to us.
Ultimately, for our nation to survive, judicial review needs to be eliminated as a practice. The majority of our problems as a nation comes from the fact that our federal government makes up its own rules, and determines the constitutionality of its own actions, and in the process has made the voice of the States irrelevant.
Judicial review was born on the statist slab of judicial opinion. In 1803, Chief Justice John Marshall (in his written opinion regarding the outcome of Marbury v. Madison) wrote that the Supreme Court has the power of judicial review, or the authority to determine if a law is constitutional, or not. If the courts, according to Marshall, find a law to be unconstitutional, it can be struck down. Judicial review, however, is in conflict with Article I, Section 1, of the U.S. Constitution, which grants all legislative power to the U.S. Congress.
Through judicial review the courts have the ability to shape law as they see fit, despite the opinions of Congress, or the people. With judicial review, the federal courts have continuously struck down state laws as unconstitutional, even in cases where the federal government has no constitutional authority over the issues in question. Combined with the 17th Amendment, which changed the vote for U.S. Senators away from the State legislatures to the popular vote of the people, judicial review has enabled the federal government to diminish, and nearly eliminate, the voice of the states.
State sovereignty is one of the central tenets of the U.S. Constitution. The States, as individual republics, and as a result of uniting, created a federal government to protect, preserve, and promote the fragile union, not to rule over the States. The Founding Fathers rejected a centralized governmental system, which included rejecting having a king, and a judicial oligarchy. They specifically designed our federal government to be one of limited authorities, and for the States to have more powers than they currently seem to have. The Founding Fathers understood that local issues could be best managed by local government, and the only powers the federal government should have are those that involve the general welfare of the union.
Liberalism is nothing new. In the days of our founders the big government people were monarchists (who lobbied for America to be a monarchy style system, like Britain at that time), or utopianists. In both cases, the drive for a more centralized system, that would later be labeled socialism and communism, was already in existence. Since the purveyors of utopianism existed during the forging of this nation, the Founding Fathers did indeed address the philosophies of utopianism. Samuel Adams said, regarding the belief that government should be more centralized, “The Utopian schemes of leveling [re-distribution of wealth] and a community of goods [central ownership of the means of production and distribution], are as visionary and impractical as those which vest all property to the Crown. [These ideas] are arbitrary, despotic, and, in our government, unconstitutional.” (The 5,000 Year Leap, page 30)
The Federalists, or at least the ones like Alexander Hamilton that wanted to see America ruled over by a political elite, were the folks that were most critical of the Articles of Confederation. It was the monarchists, and those that believe in utopianism, that most pushed for a new constitution. They desired to snuff state sovereignty, and to create a more centralized federal system, through the new constitution. Patriots like James Madison, however, battled hard during the Constitutional debates in 1787 to keep the federal government as limited as much as possible, while granting to it only the authorities necessary to protect, promote, and preserve the union. Though the purpose of the constitutional convention was to create a more perfect union, these men also desired to ensure the government maintained itself as a protector of the citizen’s inalienable rights, and private property rights, by not being allowed to infringe upon them. The Founding Fathers designed the federal government to not fall prey to the temptations of the people to abandon their freedoms and rights by subjecting themselves to a strong federal system operating on principles of collectivism and utopianism, where the government endeavors to take care of everyone from cradle to grave.
Defeated, because the constitutional convention did not render a document creating a strong, centralized system, Hamilton and his fellow collectivists turned to the courts as a means of subverting the Constitution and creating a governmental system controlled by a small group of powerful men, one of which Hamilton hoped to be. In 1803, in pursuit of launching the process of subverting the Constitution, and ultimately rendering it meaningless, the courts seized the power of judicial review for the federal courts. It was at that point that judicial activism began its long, and arduous, journey of incrementally changing America from a nation that championed the rights of the individual, to a system that sought to treat the American citizenry as a homogeneous mass of dependents in a collective society where personal responsibility, self-reliance, and individuality, is a thing of the past.
By virtue of seizing the judiciary, the collectivists have literally stolen the law. A system of activist judges have perverted the rule of law from being the law as granted by the Constitution, to the mere opinions of a bunch of people in black robes. Rather than simply applying the law as originally intended, federal judges have learned to legislate from the bench. The true paradox is that the only way to get them to stop legislating from the bench, as allowed by the unconstitutional concept of judicial review, is to use the courts, and judicial review, to turn things around so that down the road the court’s unconstitutional practice of judicial review is eliminated forever.