The Importance of Judicial Review
It is entirely reasonable to believe that the Constitution does not authorize judicial review of congressional enactments, as Matthew Franck professes. I think the originalist evidence on this is actually mixed, notwithstanding that modern practice and opinion have come down definitively on the side of judicial review, to the point that this is almost a purely academic question today.
The perverse effect of disparaging judicial review, of course, is to endorse a Congress whose power is limited only by its own underdeveloped capacity for self-restraint, to paraphrase Justice O’Connor. As noted in the Federalist Papers, one of the key accomplishments of the founding was to establish “the bulwark of a limited Constitution against legislative encroachments.” And it’s hard to trust that the legislature can be a bulwark against itself. One could argue that legislative abuses are best prevented through popular pressure and democratic accountability, but problems of impulse, public choice, rational voter apathy, and tyranny of the majority pose something of an obstacle to that view, as the reality of our government daily demonstrates.
The trick, of course, is getting a judiciary that will apply constitutional limits correctly, which you may discard as a delusional hope.
But even if you don’t think the Supreme Court should have the power to strike down a law just by declaring it invalid, that is no reason for the Court to refrain from giving its most honest and persuasive interpretation of the Constitution when it applies to a live case or controversy that comes before the bench. If Congress wants to ignore the Court, it can always do so, and deal with the political fallout.