It seems to me that for any system of government to work it requires a reasonably honest, non-stupid judiciary without a political agenda. I agree with Eric Chase that America has a big problem in this area.
What is that problem? Could it be that power corrupts? America has been fortunate for a couple of centuries that the grant of power to the judiciary has not been grossly misused. Who gave federal judges the power to make and unmake laws in the first place? Apparently, the Supreme Court carved out its unique powers in Marbury versus Madison. The court provides a bit of overkill in describing its role, but the essence is this: "It is emphatically the province of the judicial department to say what the law is."
The logic is unassailable. If a law goes against the Constitution, the court cannot enforce it. But why is this power limited to the judiciary? Jackson is reputed to have said, "The court has made its decision; now let it enforce it." If the president believes that a law is constitutional, he will be derelict in his duty in submitting to the court's opinion. Likewise, he will be acting against his oath in enforcing a law that he considers unconstitutional. If the Supreme Court is the only upholder of the Constitution, America's democracy is a skyscraper built on 9 toothpicks.
What about governors? State judges? Even policemen? Should they not likewise uphold the Constitution? The Supreme Court was very circumspect in declaring laws unconstitutional for a very long time, and so the question was more theoretical than practical. However, times change.
Let's take a couple of modern problems: free speech for spammers and freedom of religious expression. Americans believe that the Constitution gives them freedom of speech and religion. It doesn't. The First Amendment is crystal clear: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."
"Congress" means the US Congress. The states had every right to abridge free speech and to establish religion; many of them did so. Jefferson even encouraged Republican states to abridge the free speech of the Federalists. His technical objection to the Alien and Sedition Acts was that they originated with the federal government.
But who was supposed to protect the people's rights? Jefferson's answer would have been, "The people themselves, through their governments." If their state government did not protect their rights, they could move to another state that did; and as a last resort, overthrow the offending government. This was the original democracy: a limited grant of power to the central government and a very large grant of power to the states and municipalities.
The Tenth Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (I believe that "people" means the local governments here.)
The Supreme Court turned this scheme on its head in the 20th century, sometimes quite cynically. But where do we get the notion that the Supreme Court is the protector of freedom of speech? Peter Schandorff put me on to the doctrine of incorporation, in which a series of court decisions starting in 1873 interpreted the 14th Amendment to mean that the Bill of Rights applied to state law. The justices in the 1873 case put the matter clearly:
"But when [the consequences of the logic of incorporation] are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress, . . . when in fact it radically changes the whole theory of the relations of the state and federal governments to each other and both these governments to the people . . . We are convinced that no such results were intended by the Congress."
Nevertheless, the theory won out in the courts over time. The result is that the Supreme Court now protects our freedom of speech and religion.
Consider the question of internet spammeisters. There is absolutely nothing in the Constitution to prevent the states from regulating their speech. Nor is there anything to prevent a state or locality from establishing a religion. The original Constitutional idea was much closer to the idea of panarchy than it is to our present form of government.
In theory we have freedom of speech: Neither the federal government nor the states can abridge our speech. But what about the FCC? The most important instruments of speech in the modern world are radio and TV. The content of these media is controlled by a federal bureaucracy. The Supreme Court finds no problem in limiting commercial speech and even political speech in certain campaign laws.
On a more subtle level, we have the government advertising itself with taxpayer money. We have all seen recruiting ads. What if I am against the existence of the military? They tell me I can speak my mind. However, they take my money (money I may have used to publicize my views) and spend it to promote an instution I find repugnant. The government likewise advertises its Medicare and Social Security programs.
If freedom of religion means freedom from state-promoted religion, then freedom of speech ought to mean freedom from state self-promotion. That would be political freedom. When the government advertises itself, it takes my money and promotes programs I dislike and subtly abridges my freedom of speech. All this control of speech is done with the tacit or overt agreement of the Supreme Court.
How about gay marriage under the original democracy? A state has every right to sanction gay marriage or to prohibit all homosexual contact. There is the question of the "full faith and credit" clause: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." I find this a bit puzzling, particularly in the present case. Either the framers did not anticipate radically different forms of government in the states or the clause is not so far-reaching as modern commentators believe. It is certainly a technical mistake for those who favor gay marriage to insist on the recognition of those marriages in all states. Such insistence has already spawned a number "man–woman marriage definitions."
Under the original democracy, a state would simply sanction gay marriage. Consider the consequences. The rest of the nation could examine the results and act accordingly. The benefits and problems would be limited to a single state, thereby providing a kind of social experiment. It is neither just nor practical to ask people to abandon their fundamental beliefs in order to be "good citizens," but that is the effect of turning every issue into a federal matter. In a nation of hundreds of millions, there ought to be room for two opinions, maybe more.
I've heard that certain programs should be passed on the federal level because of increased efficiency of those programs. As an aside, I'd like to point out that size does not necessarily increase efficiency, even in the free market. After a company achieves a certain optimal size, its efficiency often declines. Of course, this decline is masked in modern, centrally planned economies. As the size of a company grows, it can devote a smaller percentage of its resources to dealing with the state: complying with environmental and worker protection laws, protecting itself from state attacks, attacking its competitors through the government, etc. Government is fairly effective in keeping the underclass from competing with established industries. If anyone wonders (and no one seems to) why the gulf between rich and poor is growing even as government increases its power, he ought to consider the inherent conservatism of the state.
What if 48 states had passed different versions of Social Security? A mess? Inefficient? Yes, of course, but not as much of a mess as the free market. Each state could look at the experience of the other states and see the pitfalls and the benefits of their particular programs. If Social Security were to be standardized in the end, it would have been subject to the tests of reality.
Often, this is not what intellectuals and legislators want. The intelligent person is at most risk for falling prey to the miniature railroad building disorder. There are those who built whole worlds with tiny cars and buildings and greenery and even pets around their model railroads. An interesting diversion. But the intellectual treats the world as his property and thinks he can turn the population into his toys. The people can suffer in two ways. The government program always provokes unintended consequences. The other problem is known quite well by computer programmers. The biggest problem in computer programming is that the machine does exactly what it's told to do. In the social realm, this can be devastating.
What's wrong with prohibiting the federal government from legislating as it wants? Why can't Massachusetts have gay marriage? Where is the problem with medical marijuana in California? I only wish that Washington (Oregon?) had passed its state medical program. To be fair, though, the federal government is sucking so much money out of Washington for Medicare, etc. that it probably could not have afforded even the most efficient form of socialized medicine.
Here's how I see the matter. A man in Detroit cannot bear that a person in Texas uses drugs. He is willing to use the violence of the state to keep that person from drugs. If someone in London, Canada, a few miles away, uses drugs, it makes no difference to him. A woman in San Diego is willing to jail employers in Kansas for paying less than the minimum wage. Meanwhile, many residents in Tijuana are earning far less.
These people have the mind of the state: a mind that is always officious and quick to use violence to attain its ends. It would be nice to limit this mind to state governments. Furthermore, the subjects of one state can always escape to another state. The problem is that this truly progressive system of government was destroyed. I am no constitutionalist. The Constitution didn't work. It failed.
The only way for people to get out from under the state is for them to destroy the mind of the state in themselves. Once the mind of the state is gone, the man in Detroit will treat his neighbor as he would a Canadian. That is not to say that he will not use violence, only that he will understand that he is using violence. To the state mind violence is a civic virtue.
I don't believe that it is.