As we shall see, since the beginning, the powers of the states have been eroded via political moves both abetted and condoned, and even often initiated, by the Judiciary– when the other two branches weren’t so engaged.

The Supreme Court was originally seen as a sort of gatekeeper, an arbiter and decider if some skullduggery either the Executive or the Legislative branch of the Federal government was up to was legal . . . legal in strict accordance with the U.S. Constitution. And not from any other source– such as the English constitution– it’s own opinion of how things ought to be, or its own usurpation of powers not granted it by that document. But judges, Supreme or not, are, as were the men who wrote the thing and those who confirmed it, only human.

Things got off to an ominous start when George Washington appointed the first Supreme Court justices, with John Jay as chief justice. Washington’s criteria mostly consisted of membership in his own party, not an unreasonable standard for a politician. And since he got to appoint all nine, he got a head start. In 1796, the first constitutional case concerned the extent of federal power. It had to do with whether British creditors could collect debts they were owed by certain Virginia debtors. The Court ruled that a Virginia state law enacted in 1777 that intended to keep the Brits’ hands out of Virginia pockets was unconstitutional, and therefore void. There are a lot of things wrong with this ruling, not the least of which is there is not one phrase in the Constitution that gives the Court the power to get involved in the case. Instead, the Court inserted itself in it via the treaty component of it. This legal sleight-of-hand set the stage for much subsequent power-grabbing by the Supremes.

In another 1796 case, the Court ruled that a federal carriage tax was not a direct tax, and therefore did not have to be apportioned equally among the states, despite the fact that the citizens of Virginia, having a great many carriages, would bear the brunt of the tax, while Connecticut, in which only two carriages could be found, would get off virtually scot-free.

The first of these two rulings nullified a state statute, and the second not only upheld an unfair federal statute, but in the process, gave Congress more taxation power than the drafters of the Constitution had intended, not to mention the people of the states who had ratified it.