The three branches of the federal government, individually and severally, have been harassing the Constitution since 1789, and raping it since the New Deal. When the legislative and executive branches aren’t conspiring to infuse new meaning into the Constitution, the judicial branch seems to take up the slack. What to do?
Secede and form a more libertarian union? Secession is an appealing idea (for Red-Staters), if an unrealistic one. There is the idea of “taking over” a State in order to create a haven of liberty, but that idea — propounded by the Free State Project — seems to be going nowhere. And besides, what’s the good of taking over a State when the central government already has usurped most of the powers of the States and many of the liberties of their citizens?
Nullify disagreeable statutes and court rulings? That’s been tried, but it’s no more likely to succeed than secession. Anyway, nullification is a recipe for legal chaos. It would yield lucrative, lifetime employment for yet another army of lawyers, who would advise individuals and businesses with interests in several States as to their rights and obligations, and who would represent those individuals and businesses in endless litigation.
Strip courts of jurisdiction or invoke the doctrine of departmentalism? Those might be good solutions if courts were the only problem. But jurisdiction stripping and departmentalism, to the extent they’re constitutionally valid, leave us defenseless against legislative and executive fiat. The courts aren’t entirely useless, it’s just that you never when they’re going to stop the rape of the Constitution or join in.
Promote federalism? Well, that’s where the Supreme Court could help the cause of liberty. But to get there, the president must nominate the right judges and the Senate must confirm them. I don’t think that the left is really ready to accept devolution of power to the States (even to Blue States), especially if it seems likely that a federalism-minded Supreme Court would overturn Roe v. Wade.
That’s my list of not-so-serious and serious options for restoring the law to something resembling the meaning of the Constitution. Promoting federalism seems the most promising option, but it requires an unlikely (unholy?) alliance between left and right.
Politics and Prosperity 