Now let us compare the intent and purpose of the Constitution with the Supreme Court's actions regarding it. The Constitution was a specific and limited delegation of powers to the federal government. It was those powers and none other that were listed within the Constitution. The 10th reiterates that intent for those who are too dull to understand those intentions.
Beyond those listed powers the government has none. The retained rights of the people are all of the rest without need of being listed. The retained powers and rights of the people are simply "all the rest."
Thus the Supreme Court has only the power to deal with those specifically delegated powers if the law in question addresses a delegated power. If the law does not address a delegated power then it has only the power to declare it unconstitutional, that is, that that law addresses a power not delegated to the federal government.
Rather what happens is that the Supreme Court has taken the trend to strike down laws by finding the unlisted rights mentioned in the 10th amendment. Thus the question of the people having a right to privacy is not relevant. What is relevant is that the government was not delegated the power to regulate privacy. The government was not given the power to determine what is and is not a private matter.
The point to this distinction is that in taking upon itself the power to determine just what the unlisted rights are it also takes the power to define and limit them. In this manner it acts specifically contrary to the 10th Amendment.
The problem with the courts determining our unlisted rights is that once having done so it is easily held that if the courts can not find such an unlisted right then it does not exist. How one can find an unlisted right is beyond me. Further there is the tendency to try to find every known right in some manner force fit into the Bill of Rights. The very term Bill of Rights is a misnomer in that it is a Bill of Prohibitions specifying exactly what the government can not do.
As such the courts are prohibited from determining just what those unlisted rights are or what their form might be. The people are not obligated to formulate specific rights that are to be excluded from the jurisdiction of the courts. Simply, if the government is not delegated a power then the court can not adjudicate it. The court can only find that a law addresses some matter that was not delegated and is therefore null and void.
Argumentation such as "the court has held it has the power to" deal with some subject or other is also void. The court can not hold they can deal with an undelegated power or an unlisted right. But as we have seen the country is on such a legalistic trip that it holds the courts to be sovereign and the Supreme Court the final arbiter without recourse. Clearly this was not the intention of the Constitution.
Was we find in Article III, Section 2 of the Constitution
2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.
Noting here that Congress has the power to except matters from the jurisdiction of the federal courts. There also the power the make general and sweeping guidelines for the actions of the courts. Thus it is possible to establish put into law the specific exclusion of dealing with anything beyond the enumerated powers.
It is further possible to ask the court to rule upon the limits of its own powers however futile that may appear. And the futility is the problem.
We have a government which has evolved into a usurpation of every unlisted power and right and which works to narrow the specific prohibitions within the Bill of Rights. And we have a national attitude holding the findings of the Supreme Court to be the same as stone tablets being handed down from the Mount. Yes we may disagree profoundly with its findings but also we accept its findings as immutable without recourse save back through the same court system.
This is an attitude that must cease if we are to get the government back under control. We object to aspects of the government's intrusion upon our lives but if the Supreme Court holds it is somehow a delegated power without being able to quote from the Constitution we let it stand. And since the courts are a whim of times due to the partisan affiliations of its members we can expect no specific recourse to the Constitution.
The very idea that the Supreme Court needs to have members chosen by their political persuasion should be evidence enough that it is not in the business of upholding the Constitution. But no matter which side of the issues we are on we want it packed "our" way.
Is there really something that wrong with the Constitution as written? If there is should we not be in the business of rewriting it? And if we are not going to rewrite it should we not live with it as written?