Mr. Roeser imagines American politics as a tennis match, a match begun by Hamilton and Jefferson. He sees the game now as an entirely one-sided romp by the Hamiltonians. An excerpt:
Now Hamilton, heady with victory over Jefferson, pressed his advantage. He called for creation of a national bank, the Bank of the United States, patterned after the Bank of England. He saw the bank as a depository for government funds, a means of transferring monies from one part of the country to another, a source of loans to the government and other banks and a device to regulate the money supply i.e. a 18th century version of the Federal Reserve. He didn’t like the idea of government issuing paper money because governments, he said wisely, are not noted for self-discipline. Jefferson saw this as a violation of the Constitution which doesn’t mention a bank, as a giveaway to the rich, He despised banks and stimulated a fear of powerful financial institutions in his followers.Roeser proceeds to give his reading of American history showing instance after instance where the interests of Order triumphed over those of Liberty. He asks, "How can we rectify the imbalance and return our polity to the old tennis game format where there is a force for liberty balanced against a force for order?"
To the argument that the Constitution didn’t provide for a bank, Hamilton invented the concept of “implied powers.” Oh-oh: danger signal.
That concept has been with us for two centuries. Implied powers was an invention, Jefferson said, and potentially a deadly threat to liberty. It could be stretched to embrace anything the politicians want. You know what? He was right.
This is a valid and important question. You may not agree with Mr. Roeser's answers. I certainly don't agree that America should undo the principle of "judicial review," established by Marbury v. Madison. I can't imagine what could realistically take its place.
Still, I have to agree that all too often, the legislative and executive branches of government have abandoned all pretense of being constrained by the Constitution. Laws are routinely proposed, and sometimes passed, at all levels of government, that ignore or even deliberately trample seemingly obvious constitutional principles. If there's something fundamentally wrong with a statute, the legislators may say (on the rare occasions that they are asked), that the courts will fix it -- or throw it out altogether. In a textbook example of irony, however, judges occasionally let dubious laws stand, deferring to legislative judgment under the principle that all statutes are presumed constitutional. (For an illustration of the principle -- meaning I express no opinion here about the ordinance being construed -- see Napleton v. Village of Hinsdale, 229 Ill.2d 296, 306-07, 891 N.E.2d 839 (2008): "Statutes are presumed constitutional, and the burden of rebutting that presumption is on the party challenging the validity of the statute to clearly demonstrate a constitutional violation. [Citation omitted.] This court has a duty to uphold the constitutionality of a statute when reasonably possible [citation] and, therefore, if a statute's construction is doubtful, a court will resolve the doubt in favor of the statute's validity.") Failing to defer, you see, will be decried as "judicial activism."
Judicial activism can be the best, and is sometimes the only, defense against legislative or executive tyranny.
The best protection against both judicial activism and legislative and executive tyranny is a citizenry that understands, and appreciates, the principles of separation of powers, the wisdom of federalism, and which has a healthy skepticism of government in general. We don't have anything like that today. We have people who expect government to lead them and guide them through green pastures, to safe waters. All too many see street corner cameras as 'protection' against crime rather than as the Orwellian constructs that they are. (Has anyone under the age of 50 even read 1984?)
Henry Ford said, "History is bunk." Too many have believed him. Benjamin Franklin said, "They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." That pretty much describes our society today. We'd better start by educating those near and dear to us and hope the ripples spread.