Against Two U.S. Empires, Against Judicial Review

If you are against the international U.S. empire, shouldn’t you also recognize that the U.S. also operates a domestic empire over the states and the people? And shouldn’t you be as strongly against Washington’s domestic abuses and misuses of national power as you are against its international abuses and misuses of power?

Of course, you should, if you are a consistent exponent of non-aggression.

Bruce Fein has condemned the international U.S. empire strongly. Yet, in an essay dated Nov. 19, 2018 in The American Conservative, he takes Matthew Whitaker to task for deploring judicial review and the Marbury v. Madison (1803) case that was taken as a precedent for it.

Instead of seeing that Supreme Court authority of judicial review has completely undermined the Constitution through one outrageous ruling after another, in the process producing a domestic empire, Fein enshrines this authority: Nullification: How to ... Thomas E. Woods Best Price: $2.00 Buy New $8.34 (as of 05:25 UTC - Details)

“Judicial review is to the rule of law what the Ten Commandments are to Judaism or Christianity. Without it, Congress, the President, and the States would decide the lawfulness of their own acts. They would be judges in their own cases.”

No, no, no. Judicial review subverts the rule of law. How else but by subversion could fiat money be imposed on a country whose Constitution demands metallic money? How else could be approved the power of Congress to stop a small Ohio farmer from raising wheat for his own consumption above the quota imposed by Congress?

Tom Woods has already defended Whitaker’s position on the score that James Madison in The Report of 1800 spelled out the alternative to judicial review that’s called for by the very nature of the U.S. Constitution as a compact among states.

Madison makes mincemeat out of Fein’s contention that “Without judicial review, the law would be no more than a jumble of political calculations with ulterior motives.” Absolutely not. If the government formed by the United States had been restrained from the outset by those same states, that centralized government, known as the United States of America, would not have evolved into an international and domestic empire, a governing body that dominates the states and their citizens while seeking, in a project that must fail, to dominate governments worldwide.

Even today, Madison’s argument and the 10th Amendment lie dormant awaiting a wakening that brings about a restructuring of American politics. It Is Dangerous to Be ... Andrew P. Napolitano Best Price: $1.10 Buy New $5.51 (as of 11:50 UTC - Details)

Setting the question of government power right will not come about through judges on the Supreme Court. Fein, defending judicial review, quotes Scalia, Rehnquist and Kavanaugh on Marbury as follows:

Scalia: “…Marbury is of course one of the great pillars of American law.” Rehnquist: “the linchpin of our constitutional law.” Kavanaugh: “among the four greatest moments in Supreme Court history.”

Clearly, those who are selected to be high court judges and who shape their careers so that they will be selected are extremely likely to support the court’s powers and thus Marbury.

If it is not too late, Madison offers hope of a means out of the wilderness of empire, domestic and international. He offers the necessary alternative to Supreme Court judicial review, made necessary by the very nature of the compact:

“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.”

For further analysis of nullification and Marburysee here. (Thanks to Matthew Perry for this.)