I've been advocating that for some time. I would love to see all perceived un-Constitutional legislation challenged. Apparently, no one wants to do it. Between the "commerce" clause (much abused) in the Constitution and the "welfare" clause in the Declaration of Independence (which has NO legal standing - it's simply a statement), no one tries.
INTENT has been long forgotten. There was much debate in the first Congress before the individual States signed on in 1787. There was also INTENT when some insisted on the original Bill of Rights and the meaning of said Amendments. However, they all believe in the "balance of power" to protect against totalitarianism.
It seems such has been lost to our current (3) branches of Federal government. The Presidency has long ago over-stepped it's powers (think FDR and more currently, Obama); the Congress has given up much of its power; the Judicial branch has become a legislator and looks outward to International law.
The sad irony is, the Founding Fathers called it Federalism.
I think the reason there are not more Constitutional challenges is because the outcome is uncertain. With the squirelly courts, a loss at the Supreme Court level makes it impossible to reverse— it becomes the law-of-the-land. At least when it is just a law, Congress can repeal it later. That won’t happen after something is decided by the Supreme Court because of their reliance on precedent.
I always thought that was why Reagan never challenged the law that made supporting the Contras illegal. Clearly the Constitution makes foreign policy the purview of the executive branch. Congress is given only the role of declaring war and approving treaties.
So the question becomes: which is better, to let it go and hope to over-turn it later, or challenge in court and make it permanent? Court would be the better option if you knew the decision would go your way...
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