First, you think and write well. We have no disagreement on most points
The real problem here is Marbury v. Madison. Marbury set the stage for the whole concept of “judicial review” of the then uncharted and untested concept of “constitutionality.”. There was no authority for SCOTUS to assume this power and authority.... They (CJ Taney if memory serves ?) simply deared courts has such authority... and that was that.
That said, right or wrong, (and unfortunately, as in many cases of law, right or wrong ceases to be an issue) that concept is now settled law.
That said, rather than concentrating on the issue of whether or not SCOTUS has reviewing authority, I prefer to concentrate in currently practical areas. I believe strongly that we will get a strong 10th ammendment case before the Court (probably not firearms related). I think the entire concept of some Constitution guarantee of “privacy” as nose under the tent to get the abortion issue federalized is very attackable. We win on that 10th amendment issue, we have created a conservative tsunami
Sorry I can’t get more into Marbury and some old profs papers (mimeographed!) on it, but I am in Adama, Turkey this AM on just my IPhone
Be well.
The heart and soul of Marbury is that a court, given a set of conflicting laws, has to choose which law will control. Between a constitution that granted limited powers to a court, and a challenge based on statutory law, SCOTUS had to find the constitution superior to the statute.
At bottom, the case stands for the proposition that SCOTUS does not have authority to review a case, where the constitution does not grant jurisdiction to the Supreme Court.
The alternative would be to place statutory law in a superior position over the constitution.
-- I think the entire concept of some Constitution guarantee of "privacy" as nose under the tent to get the abortion issue federalized is very attackable. We win on that 10th amendment issue, we have created a conservative tsunami --
Everything is attackable in theory. Even if the "right to privacy" is found to not include the power of the states to regulate abortion (which is the 10th amendment victory I think you are anticipating with your remarks), SCOTUS is not obliged to be logical or consistent. The "states rights" victory is easily limited to that one issue - end of tsunami.