Of the three, the judiciary is the only one whose only job is to determine whether something's illegal, rather than simply undesirable. The other two, as you started to indicate, can take action for any reason they wish. Therefore, it would seem strange to have a Constitution with all these provisions and requirements, and then leave its enforcement up to people who can just do whatever they want anyway. So that's where I disagree with Hamilton, when he said that the people would make everything right, so there's nothing to worry about. I don't know what the Greek or Latin term for it is (maybe general_re can help me out here, if he's still lurking), but it's basically a "solve everything" argument, which really solves nothing.
Under the circumstances, what more do you think courts should reasonably be expected to do?
I expect them to uphold the law. As Hamilton correctly states in Fed 33, "A law for abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of power not granted by the constitution." Since the judicial power, by definition, is the power to apply the law, that would have to include the power to determine whether or not a particular act of Congress is within its lawful power granted under the Constitution, regardless of how uncomfortable they might be in making such a ruling. And there's really no need for the courts to have to go into too much detail, investigating whether or not there really is a "need" for a particular measure. How much "proof" does anyone require that a government needs to be able to protect its own officers from violence and from legal harassment by lower governments? How much "investigating" does anyone need to do in order to determine that allowing perjury in courts is not a swift idea? Likewise, they can safely say as a matter of principle that in order to outlaw certain activities, it is not necessary to outlaw ancillary activities. It just isn't, and it clearly involves the creation of a new power altogether, not an adjunct to an existing power. That is what "necessary and proper" means.
Agreed. Allowing perjury is not a swift idea. However, the problem is that Jefferson didn't think that Congress had the constitutional power to enact a "swift idea" unless it was also strictly necessary for the exercise of a specified power. In his view, Congress did not have the authority to pass laws "which are merely 'convenient' for effecting the enumerated powers."
Likewise, they can safely say as a matter of principle that in order to outlaw certain activities, it is not necessary to outlaw ancillary activities.
We can't even have an Inaugural Parade without prohibiting certain traffic. While it is not always strictly necessary to outlaw certain activities, it often is necessary to do so, by anyone's definition of "necessary." And quite often, outlawing ancillary activities makes it more "convenient" for the exercise of specific powers.
Do you really think that judges can become involved in separating the "necessary" from the merely "convenient" means of exercising specific powers without introducing into the equation their own personal notions of which laws consist of "swift ideas" and which do not? I suspect that that is all that you would get if you could find a way to force judges to enter that swamp.
It just isn't, and it clearly involves the creation of a new power altogether, not an adjunct to an existing power. That is what "necessary and proper" means.
There isn't any way for me to tell you that your desire for a more "activist" Supreme Court is constitutionally right or wrong. All that I have tried to do is to provide you with some of the reasons for which the Court has been reluctant to move in that direction.
Returning to the Voting Rights Act, the Congress made the factual determination that the suspension of literacy tests was "necessary" in order to enforce the Fifteenth Amendment. You have suggested an "alternative means" that Congress might have chosen to enforce the amendment (passing laws which might require a separate judicial proceeding for each alleged violation by each alleged victim). It is entirely possible that the means you would have selected might have eventually worked. The means that Congress selected did work. Except to the extent that one of two alternatives violates a specific prohibition in the Constitution, the judiciary is very unlikely to become involved in the choice between two alternative means. Courts view that as a legislative function which is none of their business. So, if you were inclined to want to convince the Supreme Court that the Voting Rights Act is unconstitutional, your best bet would be to find a specific constitutional prohibition in which to frame your argument.
Tenth Amendment?