It is a rather faint hope that a group of people selected by the President and confirmed by the Senate will be reliable defenders of limits on the powers of the very people who selected them. It can happen – but to rely on it is foolish (“you are accusing the Founding Fathers of an error” yes, in this, I am – perhaps it is because I am an alien that allows me to consider the possibility).

After all even in the early 1930′s (when the “Four Horsemen” were still on the Supreme Court and the Chief Justice was still tending to side with them) the Supreme Court upheld (in two judgement) the radically unconstitutional actions of the Federal government involving the stealing of privately owned gold, and the voiding of gold clauses in contracts.

Indeed even in the late 19th century (supposedly the high point of government limitation by the court) the infamous second “Greenback” case overturned Chief Justice Salmon P. Chase judgement that the Constitution of the United States gave no power to the Federal government to issue paper money (a judgement he made in spite of the fact that he had been the very man who had issued the paper money, in his capacity as Treasury Secretary during the Civil War).

Perhaps a “Supreme Jury” would have been better – a group of ordinary citizens (perhaps one from each State) selected at random for each consittutional case.

Such a group would not tend to be skilled in the dark art of “interpreting” the Constitution out of existence. And would be more likely to decide on the basis of the arguments made by both sides of a dispute and the text in from of them (a text not beyond the wit of an ordinary person to understand).

By the way I must agree that the Cato person was quite wrong in thinking that “forbidding discrimination” (in the case of the State of Colorado not being allowed to stop local governments passing anti discrimination regulations) is somehow upholding “freedom of association”.

On the contrary (of course) – freedom of association depends on people being allowed to “discriminate”, i.e. to choose (to discriminate means to choose) who they will associate with. Whether this means play baseball with, or trade with, or employ, or whatever.

Modern “anti discrimination” regulations are wrong for the same reason that the old “Jim Crow” regulations were wrong – in that they tell people what they must do with their own property.

This article seems to be saying that the Bill of Rights only applies to the Federal government – this is a point of view (after all efforts to apply the Bill of Rights to the States have faced a lot of resistance over the centuries and still do), but to say that the U.S. Constitition limits on government power only apply to the Federal government does have some radical consequences.

For example, it would be acceptable for the State of California to ban the expression of political opinions that it did not approve of, or to ban religions that had beliefs that it did not approve of (after all the First Amendment would only apply to the Federal government).

Also (to give another example) one would have to say that Dartmouth versus the State of New Hampshire was incorrectly judged – that the State of New Hampshire (or any other State) can just take over anything it feels like taking over. And need not even provide compensation.

As a third example, all the people looking to see a vindication of the Second Amendment in the case against Washington D.C. would look in vain.

After all, even though Washington D.C. is under the Congress it does have a local govenment – and it is the local government that de facto bans the private ownership of firearms.

And even if the 2nd Amendment was held to apply to the D.C. it would not (according to this article) apply to any of the 50 States.

Of course it is a disgrace that the Constitutional limits on the Federal government have mostly collapsed – with (for example) the PURPOSE of the powers of Congress “the common defence and general welfare” being treated as “general welfare power” allowing government spending on anything, and (to give the other classic example) “regulate interstate commerce” being distorted to allow virtually any regualtion.

But this does not mean that there should be no limits on State and local government power (or that these limits should only be found in State constitutions). That (say) State government should be allowed to enforce slavery, or kill off whole ethnic groups (or whatever).

The United States would not be a country (a nation) at all, if State and local governments could do anything they felt like.

Of course the above is not the same as the question as to whether or not a State can leave the Union.

I accept that a State should be allowed to leave the Union (i.e. that the Federal government has no Constitutional right to stop a State leaving the Union), but whilst a State is part of the Union it must accept the fundemental limits on government power (not just Federal goverment power) laid down in the Constitution of the United States.