The Dems’ arguments assume that their policies would be supported neither by a Constitutionalist Supreme Court or an elected legislature. That is to say, their policies are both unconstitutional and unpopular.
To a point, as quite a few are unpopular, that is spot on.
Progressives have loved them some Arbitrary government and have instituted a virulent form of traditionalism that in the past I’ve compared to what the Rabbis did with Scripture.
Ignoring the debates over the propriety of the latter, when it come to the former this means they have functionally surrounded the Constitution with margin notes and forbade any to look at the Constitution but only to look at the cumulative opinions / traditions of the Court.
Progressives did this because at the heart of progressivism, from its earliest days, lay a contempt for the sort of Law the Constitution is ... they wanted it to authorize so much more involvement and eventually decided to just do what they pleased and forego any effort to ever amend that their mad schemes should be lawful. They use the Court in a form of ball and cup game, hiding the Law under the cups.
When Marshall in Marbury justified an obligation to review statues to see if they are pursuant to the Law he did so because the Justices are made to take an oath of fidelity to the Constitution saying that to make them take such an oath but then close their eyes to the Law and only see the statute was “worse than a solemn mockery”.
Well, if that is the case then what is it to require anyone to take such an oath, or indeed anyone at all, and likewise turn a blind eye to the Constitution and only see the opinions of the Court?
How worse than a solemn mockery on the one hand but not on the other?
There is no delegated Power of review actually granted to the judiciary, we do not have federal common law in the sense that there is judge made law. Judge made law depended on the judges being representatives of the Sovereign, the King, who had sole authority in himself to make and dispose of laws and to grant that authority to officials under his Sovereignty.
When Marshall talks about Sovereignty and the Law he spoke of the original right to make Law, which is the power found in Ratification of the Law, either the Ratification of the Constitution or the Ratification of subsequent successful Amendments.
The writing of the proposed law is not the exercise of this original right. The writers of the proposed law do have a logical and rational obligation to give advice to those with the power of consent but to deliver their work over to receive consent they must first put down their pens, cease to write and release the proposed language.
When Ratification occurs the Law that is established is not just the words on the paper, what Marshall said would then be mere form without substance, but what those who Ratified can be said to have agreed to, these are the permanent principals thereby established.
And it is relatively easy to consider what was agreed to compared to considering all the debates in writing, the contents of which may include many things not agreed to.
And it is especially the case that no writer of such a Law, once Ratified, is somehow a Sovereign over the Law to contradict what he and others had expressly told those with the original right before Ratification ... as Hamilton did with his spurious notion that there is further power to spend besides on the objects of the enumerated Powers on account of the clause used to justify what was then a completely novel to United States government Power to tax (there is no general welfare clause).