By Tj Roberts | United States
Brett Kavanaugh is a loss to liberty, but he is just a symptom to a much worse disease. That disease is the Supreme Court of the United States. Since Marbury vs. Madison, the Supreme Court has been used as a weapon for expanding government power, irreparably damaging individual liberty, and destroying local sovereignty. If the Supreme Court actually acted within its constitutional role, the nomination of Kavanaugh would not be a problem.
To start, the power of judicial review was not given to the Supreme Court by the Constitution. Rather, it was given to the Supreme Court by the Supreme Court itself. In the 1803 Marbury vs. Madison decision, Justice John Marshall gave the Supreme Court the power of Judicial Review, completely subverting the Constitution. By gaining the power of judicial review, the Supreme Court, a small collection of robed politicians, gained the ability to decide whether or not any and all federal/state/local laws are in accordance with the Constitution.
Needless to say, this power is immense. With there being eight (and likely soon to be nine) Supreme Court Justices, fewer than ten people have full control over whether or not your rights are protected. But the trend of the Supreme Court has been the disintegration of economic liberty and disregard for personal liberties.
While the fact that the Supreme Court can declare a law unconstitutional has done enough damage, the fact that the Supreme Court will write the law through judicial review adds insult to injury. Roe vs. Wade, for example, passed a federal law stating that state and local governments cannot make laws that restrict abortion. If Hillary Clinton was the president, imagine the damage to economic liberty, gun rights, and private property her nominees would do! While it is worth celebrating every win for liberty, we must remember that the Court should not be able to write the law. If you would not wish your worst enemy to have this power, you must not allow even your closest ally to have this power.
In other words, the Supreme Court is diametrically opposed to liberty. Eight people have more influence over your life than any other individual. The path of the US that the SCOTUS has sent it down is one of centralization and totalitarianism. Even the DC vs. Heller decision opened the door for “reasonable” gun laws. When the court has enough power to claim that a class of human beings are not people (see Dred Scott) or may be locked in concentration camps (see Korematsu), the court has too much power.
How to Stop Government Growth without the Supreme Court
“But what will we do to stop unconstitutional law?” some may ask. This answer has two parts. For one, the Supreme Court has only aided the effort to grow the federal government. Were it not for the jurisprudence of the Court, economic activity would still be considered a fundamental liberty (see footnote 4 in the United States vs. Carolene Products). If we abolished the Supreme Court today, the federal government’s greatest cheerleader would seek to exist.
Second, Thomas Jefferson and James Madison gave us the exact answer to this question. In the 1798 Kentucky and Virginia Resolutions, Jefferson and Madison made it clear that the federal government is inclined to grow and that it is the duty of the states to nullify tyrannical federal legislation. The Tenth Amendment grants a great degree of power to state and local government so that the people will have more power through localization. The Kentucky and Virginia Resolutions take that power to its logical conclusion: local and state governments have not just the right, but the duty to resist federal tyranny.
Whereas the Court is part of the federal government, it has no incentive to hold back federal growth. The people and local governments, however, have every incentive to do so. The Supreme Court is the enemy of local and individual sovereignty. It is far too powerful. Not only can it cancel a law (at any level, mind you), it can write the law. Liberty cannot be achieved when society is effectively owned by a handful of seemingly omnipotent politicians.
Originally published on freedomandeconomics.org.
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