the three branches are still one government
We are familiar with our tripartite form of government, wherein each of three branches acts to check the impulses and balance the actions of the other two. There is another level at work here, and I find it clarifying to recall that the three branches are all still subdivisions of one entity, the government. The other trinity here is a set of relationships between God, Man, and government, and this is made explicit in the Declaration of Independence.
As a rule of thumb, I find that where Constitutionality comes into play, I prefer whichever course brings the status of things in closer accord with the Declaration. This sort of action is typically undertaken by the Supreme Court, but is not limited to there, as when a President calls out the National Guard to enforce the ideas present in the Declaration whether they conform to current laws or Court precedent or not.
The rights of Man come from God and may not be set upon by any man or government.
So I view the Declaration as the highest document for understanding the structure of our government, and a necessary reference when Constitutionality is in question. And it is in the Declaration that our rights, the source of those rights, the limited role of government, the people’s power over government, and several articles in this vein are spelled out. The rights of Man come from God and may not be set upon by any man or government. Governments exist to preserve those rights and should not outlast their usefulness in that regard. Sovereignty depends upon the consent of the governed, while consent relies upon information and freedom.
I am myself agnostic, but from a process point of view, it is harder to come up with a cleaner definition of “not yours” than “God’s alone”, and that is whose power it is to alienate man from his inherent rights. Neither men nor governments of men may rightly usurp the rights of others; not because the Constitution says so, but because the rights are a gift from God like life itself.
judicial precedent which explains away the rights of man
The reason I bring this up now is partly to clarify a point I forwarded earlier, that the Supreme Court itself is on trial
with the ObamaCare decision. Looking at the interplay of forces between the branches of government, we see a fascinating tale full of intrigue and actors, etc. The problem is that seen in the larger context, the government is a single entity quoting itself as it argues with itself. I do not care one whit for judicial precedent which explains away the rights of man while reinforcing the power of government. Albert Einstein was right when he said something to the effect that the idiots who got us stuck in the first place are wholly incapable of getting us unstuck. By allowing our government to trample on the rights of man, we have begun to cede ground which is not ours to give. At the end of the day, we need more than stare decisis
if we are to make it through the night.
the last line of defense for the legitimacy of our government itself
I not only see a day coming, but I enthusiastically demand a day when we pick our noses up from the dust of politics and stand to face our oppressor–government itself in size and scope. No matter how noble and Constitutional the aspiration of the Supreme Court, they cannot generate the restorative force required to re-establish the rule of law in this country. It is in this sense that they are on trial–not as the Court, but as the last line of defense for the legitimacy of our government itself. Whether they pass or fail the test, they will not be to blame for the failure at large. Regardless of the decision they reach, it is not in their power to set things right that have been corrupted and perverted over decades and generations.
Lincoln felt that the Declaration was the proper tool for interpreting the Constitution, and that the failure of the American people to run our government with a sufficient respect for the rights of man had provoked the wrath of an angry God. It is a cogent, consistent view of the ultimate system of Checks and Balances; all spelled out in the preamble to the Declaration.