First note that this gratuitous judicial-review power — where courts’ rulings on law are considered to constrain all three branches of government — is
not found in the Constitution. Rather, it was
unilaterally declared by the Court itself in the 1803
Marbury v. Madison decision. In other words,
Rasmussen’s supposition about the courts’ role does not align with constitutionalism.
But critics would say that this is putting it lightly. Justice Scalia wrote in his
Obergefell dissent that the Court has actually become “a threat to American democracy.” And this just reflects what founder Thomas Jefferson warned when he said that if the Court was not reminded of its impotence, if it comes to be viewed as having ultimate-arbiter (judicial review) power, our Constitution will have become “a suicide pact.” As I
wrote just last week:
Jefferson explained the problem with judicial review, writing, “For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this [judicial review] opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.... The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”
Jefferson also
pointed out, correctly, that “Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.” …Judicial review is “a very dangerous doctrine indeed,” Jefferson
warned in 1820, “and one which would place us under the despotism of an oligarchy.”
Jefferson also wrote that nullification — states’ ignoring of federal dictates — is the “rightful remedy” for all central-government usurpation of states’ powers. Of course, this includes plainly unconstitutional rulings by oligarchic federal courts.
Guess Jefferson was just an unamerican SOB eh!?