I agree with you but I think we have to be mindful of where in the process we utter the last word.
If we are saying that the Supreme Court cannot determine whether a piece of legislation is constitutional after the people's representatives have spoken, that is a denial of the doctrine of judicial review which, although not explicit in the Constitution, has been the accepted modus operandi in The United States since Marbury vs. Madison in 1803, with some very important exceptions.
Pres. Andrew Jackson simply ignored the Supreme Court's ruling prohibiting the removal of Indians and their banishment along the trail of tears famously (or infamously) saying "The Supreme Court has made its order now let it enforce it."
It might be said that Abraham Lincoln and the northern tier of states decided to overturn the Dred Scott decision by waging a Civil War. In any event, that war was the occasion for outlawing slavery by executive decree.
Franklin Roosevelt, of course, attempted to undo or reshape court rulings by packing the court, an undertaking which failed as a tactic but succeeded as a strategy by causing "a switch in time to save nine."
Newt Gingrich has recently raised serious arguments asserting the power of the legislative branch to control the rulings of the federal courts simply by abolishing the courts and it is established that the legislative branch has subject matter power over the courts by controlling their jurisdiction. Gingrich cites Pres. Jefferson as one who controlled the power of the federal courts by abolishing them.
As I said, I support judicial review of legislative action although it is not explicit in the Constitution. I have a little bit more trouble supporting judicial review of referenda such as now having occurred more than once in California. I think my objection to the judicial review in California arises from my conviction that the federal judges are misapplying constitutional principles in striking the referenda rather than from a belief that the courts have no business determining the constitutionality of referenda. A warning that we are all susceptible to finding that which is desirable constitutional and that which is undesirable unconstitutional.
Of course, the people have the ultimate say when they amend the Constitution. There is no judicial review in that case.
The entire justification for declaring the people's representatives' laws unconstitutional is to deny the people the right of the majority to have their say. But that does not mean that the court has necessarily the last say.
