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> By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not? Indeed, you are corre
by linuxftw 6y ago
> By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not?
Indeed, you are correct. Judicial review is also unconstitutional.
This does indeed beg the question of resolving disputes of constitutionality. I don't believe the congress has the authority to compel the executive to do anything, other than their existing abilities to pass laws. The executive is free to enforce, or not enforce, whatever laws as they see fit, however they see fit. The court's role is to decide if the executive is appropriately applying the law in a particular case, as written by the congress.
There is no explicit or implicit need for judicial review. Why?
What is the purpose of the Constitution? To give limited, specific powers to the federal government. Who's giving these powers? The states.
It's the states' job to limit unconsitutional power grabs by the federal government. How do they do that? Well, both houses of congress are elected by people of each state, not nationally. We can also dive down the rabbit hole of the 17th amendment.
Crucially, the executive is elected by a body appointed by each state. In it's current form, the states have adopted a system where the electors are appointed based on a state's popular vote. This needn't be the case.
Finally, there's the question of enforcement. For much of the early history of the US, states were tasked with enforcing federal laws. A very prominent example of this: https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850#Nullification https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850#Nul...
This brings us to the final line of defense against unconstitutional acts: nullification. The entire reason the US has a trial by jury system is to judge the law, not the facts. There's no room for a judge to interpret whether a law is fair, or constitutional. Only for them to preside over the trial and adjudicate whether or not the state is applying law, not adjudicating the law themselves.
Is this a perfect system? No, but it's the one we used to have, and unsurprisingly, it's better than the one we have now.