Who Decides Constitutionality?
Who decides when the federal government has acted outside of those delegated powers?
Most Americans will quickly answer, “The Supreme Court, of course!”
Thomas Jefferson emphatically disagreed, arguing that the states make the determination in the last resort. Jefferson pointed out the absurdity of a branch of the federal government determining the extent of the federal government’s powers in the Kentucky Resolutions of 1798.
The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
From elementary school on, we learn that the Supreme Court gets to make the final decisions on all things constitutional. In fact, the idea is so deeply engrained in the American psyche, to assert otherwise generally elicits howls of indignant protest. But if you stop and think about it, you will recognize the notion makes absolutely no sense.
Essentially, Supreme Court apologists argue that after fighting a bloody war to free themselves from a tyrannical government, the founding generation ratified a Constitution specifically limiting the general government’s power, insisted on a Bill of Rights to further define the limits on that power and ratified an amendment explicitly stating what was already implicit – that all powers not delegated to the federal government remain with the states and the people. Then, after all this, those same people gave one branch of the federal government absolute authority to interpret the Constitution.
It would be a little like letting a Dallas Cowboy player referee a game between the Cowboys and the New York Giants.
Simply put, if the federal government gets to decide the extent of its own power, through its own judicial branch, and the people of the states possess no mechanism to hold the government it created in check, the whole notion of limited, enumerated powers becomes a farce. The federal government, in practice, becomes one of limitless power.
That was not the intent of the founding generation. They never envisioned nine federal employees determining the extent of federal power. They knew that a self-limiting institution simply doesn’t exist, and they would have never allowed the creation of one to rule over them.
James Madison emphatically asserted that the states retain absolute authority.
The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.