Thom, Al Gore disagrees with you about judicial review on page 51 (IIRC) of The Assault on Reason.

Judicial review exists because that is the judicial branch's check on abuse of power by the legislative and executive branches. If it didn't have that power, no one could reverse unconstitutional actions by the other two branches.

The basis of judicial review is that when there is a conflict between laws or between a law and an action, the court must decide who's right. The U.S. Constitution overrides U.S. law. I don't care what Thomas Jefferson said--no one's infallible--if the courts couldn't stop the implementation of unconstitutional laws and unconstitutional actions, then the Constitution would be a thing of wax. It would have all the force of a polite recommendation.

Think of a President who decides that, in spite of Amendment 20, he's going to run for a third term. Judicial review allows the courts to take him off the ballot on the grounds that it's unconstitutional. This process forces the rule of law on the other two branches. Abraham Lincoln's abuse of power (suspending habeas corpus) was stopped by the Supreme Court on the grounds that it was unconstitutional. Harry Truman's usurpation of power (taking over the steel mills) was stopped by the Supreme Court on the grounds that it was unconstitutional.

Without judicial review, Congress would have to explicitly outlaw every possible act that a public official could use his office for that's supposed to be outside his constitutional powers. And since no ex post facto laws are allowed, if they didn't think of it before the official did it, that official would get away with an unconstitutional action.

And the argument that abuse of power is supposed to cause the people to sweep the corrupt out of office and replace them with legislators that will immediately reverse the bad laws is unfounded. we had to have a war before slavery was outlawed. State-level referenda present the problem slightly differently, because the legislature doesn't have the power to overturn a constitutional amendment. Proposition 8 in California has been reversed by a court, before anyone put a counteracting referendum on the ballot. Amendment 2 in Colorado was prevented, by a court, from being enforced, and no one has yet put a measure on the ballot (in 20 years) to get that junk out of our state constitution. Democracy obviously cannot afford to wait for popular sentiment to force a change.

The Supreme Court has gone too far in using a necessary power, but that's not a reason to eliminate the power any more than it would make sense to get rid of Congress's power to pass laws in retaliation for passing some bad ones. It's a reason to fix the process of selecting members of the court.

Congress can regulate the courts, and that should include prerequisites for nomination. The Senate used to just look at the facts of a judge's career and debate in the nominee's absence, but that's been replaced by the pointless committee interview where the nominee refuses to answer any questions. We can start there. Debate in Congress has been ruined by abuse of the filibuster that doesn't require debate, and when debate does occur it consists of floor speeches that no one attends.