Objections to Taking Back The Power
Not surprisingly, some people object to what we're doing. We attempt to counter some of the more common objections below. If you have an objection we have not addressed, feel free to use our Contact form.
- Have you never heard of Marbury v. Madison?
- Absolutely. See our Marbury page. The short version though, is that The new power of Judicial Review rationalized in Marbury was just the first of many new federal powers, nowhere mentioned in the Constitution, but easily found by the Supreme Court.
- There has to be an ultimate arbiter somewhere.
- Of course, but we believe that arbiter to be the States, not the Supreme Court! Thomas Jefferson, writing to William Johnson in 1823 wrote: "But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
- Isn't the Supreme Court the logical place to make such decisions?
- Hardly. The Supreme Court is itself bound by the Constitution. If it also gets to decide what's constitutional, it gets to decide if its own actions are constitutional. That's most illogical. There is no mechanism to check the court's power if it can decide on its own that what it does is permissible.
Judicial Review gives the Supreme Court, and by extension, FedGov, unlimited powers. That's why FedGov has gotten to be so huge. Checks on FedGov power have to come from outside FedGov. It cannot be trusted to police itself.
- The states have no right to do what you propose.
- Short answer: Sure they do, see the Tenth Amendment.
Longer answer: "Judicial Review" — by that or any other name — is nowhere mentioned in the Constitution. That means:
- The power was not granted to FedGov by the states;
- The power is not prohibited by the Constitution to the states;
- The Tenth Amendment says such powers as described by (1) and (2) above are reserved to the states.
- There's no precedent for states to take it upon themselves to invalidate federal law.
- Sure, there is. For details, see our Nullification Page.
- You're crazy.
- If we're nuts, we're in good company. Were Thomas Jefferson and James Madison crazy? One would have to be crazy to see where we are inevitably heading and do nothing to try and prevent it.
- It would be too disruptive if you succeed.
- We aim to take back the power in an orderly fashion, one unconstitutional law at a time. This will be far less disruptive than the inevitable FedGov collapse if we continue as we have been.
- What's wrong with Judicial Review?
- In the present Judicial Review paradigm, to challenge unconstitutional laws, you have to sue FedGov (not to mention having to become a criminal first). So, you're suing FedGov and FedGov is deciding the outcome of your lawsuit. Do you really think that it's a good idea to let the defendant in a lawsuit decide its outcome? Do you see nothing wrong with that?!?
- The Supreme Court has been deciding constitutionality issues for more than 200 years.
- That doesn't make it right. FedGov has grown constantly over that time, the Supreme Court continually finding each new power usurped by FedGov to be constitutional. The Judiciary has set up elaborate obstacles to challenging unconstitutional laws. Only a tiny portion of challenges make it to the Supreme Court. We need a more efficient mechanism (not to mention, one without the obvious conflict of interest).
- If the states really have the right to do what you propose, why haven't they already done it?
- The states have done it, though not in the scale that we envision. Why more states have not done it, and more often, baffles us too. We can guess that the states simply don't know that they have the right and the duty to see that FedGov acts constitutionally. We're here to remedy that.
- Marbury, Marbury, Marbury...
- Just because FedGov's Supreme Court wrote a nice rationalization for assuming a power not actually delegated to it doesn't make it right. It's just "The dog ate my homework" dressed up in legalese. "Judicial Review" is not a power delegated to the Supreme Court. Marbury does not change that. The Tenth Amendment trumps Marbury.
- You guys aren't even lawyers.
- So much the better. Law schools teach the law as it is, including "Constitutional Law" according to what the Supreme Court says the Constitution means. Everything that lawyers know about Constitutional Law is based on the premise — the fiction — that the Supreme Court should be deciding what the Constitution means. We reject that premise, and all resulting "Constitutional Law." All you need to know about this issue can be learned by reading Article Three of the Constitution and the Tenth Amendment.
- What can be done about Marbury?
- It needs to be set aside. It is seriously flawed. Here's
The essence of Marbury:
The court said: "It is emphatically the province and duty of the judicial department to say what the law is."
We would add, "except in the case of the Constitution." The judiciary has a clear conflict of interest and should recuse itself from cases involving constitutional challenges.
The court noted: "The judicial power of the United States is extended to all cases arising under the constitution."
This is not the same as saying that constitutional challenges must be made exclusively through the federal courts. The judiciary assumes that constitutional challenges must be made through the courts and that this gives them the power to say what the Constitution "is." We reject that, owing to the obvious conflict of interest.
The court, ended the Marbury decision saying: "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
We agree: a law repugnant to the constitution is void. We agree: the courts, as well as other departments, are bound by the Constitution. But being bound by it is not the same as saying that they are the sole arbiters of what it means. We say, yes, follow the Constitution, and if there's any question as to what it means, ask the states to sort it out. Don't decide for yourself what limits have been placed upon you. That's for the Constitution's authors to decide.
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 announced that they held a seance and conjured the spirit of the Constitution which told them what they hoped to hear. This is pretty much the justification given by the Supreme Court for rubber stamping all subsequent expansions of FedGov power: "We know the power's in there; we can feel it."
- Granted that there's a problem, there's got to be a better solution than what you propose.
- The Constitution's vaunted "checks and balances" were designed to prevent any one branch of FedGov (Legislative, Executive or Judicial) from becoming too powerful and running roughshod over the other branches. The states are the only possible protection when Legislative, Executive and Judicial branches, acting in concert, exercise unconstitutional powers.
- OK, I'm sold, but it can't be done. Too many people are invested in the status quo.
- We'll never know for sure unless we try.
"As nightfall does not come at once, neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness."
Supreme Court Justice William O. Douglas
"Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."
"The true danger is when liberty is nibbled away, for expedience, and by parts. "
"Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations."
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Justice Louis D. Brandeis, Olmstead vs. United States, 277 U.S. 438 (1928)