Restraining the Leviathan: A Call for Constitutional Scrutiny to Safeguard American Liberty

The Imperative for Reform

In an era where government expansion seems as inevitable as the tides, the foundational principle of the United States Constitution stands as a bulwark against tyranny. The document was crafted not to shackle the people but to bind the hands of those in power, ensuring that liberty remains the birthright of every citizen. Yet, history reveals a persistent pattern. Governments at every level, from municipal councils to the halls of Congress, have repeatedly overstepped their bounds, infringing on individual rights in the name of progress, security, or convenience. This incessant encroachment demands a radical yet necessary reform: the establishment of a mandatory pre-enactment constitutional review system for all laws and statutes, coupled with stringent accountability for judicial officers who defy established precedents. Such measures would honor the Constitution's intent, prevent abuses before they occur, and restore respect for the rule of law that underpins our republic.

Constitutional Foundations: Limiting Government, Empowering the People

The Constitution's primary purpose is unequivocal. It limits government authority while empowering the people. Article VI, Clause 2, known as the Supremacy Clause, declares that the Constitution and laws made in pursuance thereof shall be the supreme law of the land, binding judges in every state notwithstanding contrary state provisions. This clause underscores that no government action can supersede the federal charter. The Bill of Rights further delineates these limits, with the First Amendment prohibiting Congress from abridging freedoms of speech, religion, assembly, and petition. The Fourth Amendment shields against unreasonable searches and seizures, while the Fifth ensures due process and protects against self-incrimination and double jeopardy. Crucially, the Ninth Amendment affirms that the enumeration of certain rights does not deny others retained by the people, and the Tenth reserves powers not delegated to the federal government to the states or the people. These provisions collectively form a framework of separation of powers, vesting legislative authority in Congress under Article I, executive power in the President under Article II, and judicial power in the courts under Article III. This tripartite structure prevents any branch from dominating, as evidenced by the requirement in Article I, Section 7, that bills pass both houses and receive presidential approval or a supermajority override.

Judicial Review: A Reactive Tool in Need of Proactive Enhancement

The Supreme Court has long recognized this limiting role through the doctrine of judicial review, established in the landmark case Marbury v. Madison in 1803. Chief Justice John Marshall's opinion asserted that it is emphatically the province and duty of the judicial department to say what the law is, enabling courts to strike down unconstitutional acts. This power has been wielded to protect liberties in numerous instances. For example, in Loving v. Virginia in 1967, the Court invalidated state anti-miscegenation laws as violations of the Fourteenth Amendment's Equal Protection Clause, affirming that personal freedoms cannot be curtailed by arbitrary government fiat. Similarly, in Schenck v. United States in 1919, the Court clarified limits on free speech during wartime, but subsequent cases like Brandenburg v. Ohio in 1969 refined these to protect expression unless it incites imminent lawless action. More recently, in Gonzales v. Raich in 2005, the Court upheld federal drug laws over state medical marijuana provisions, illustrating tensions in federalism but also the need for clear boundaries on congressional power under the Commerce Clause.

Yet, judicial review as it exists today is reactive, often intervening only after laws have inflicted harm. Countless statutes have been enacted and later struck down, causing irreparable damage in the interim. The Supreme Court has invalidated over 176 acts of Congress alone, with 483 laws or provisions nullified between 1960 and 2019. Examples abound: In the Civil Rights Cases of 1883, the Court voided parts of the Civil Rights Act of 1875 for exceeding congressional authority under the Fourteenth Amendment. Adkins v. Children's Hospital in 1923 struck down a minimum wage law for women as violating the Fifth Amendment's due process. These post-enactment strikes highlight a flaw. Why allow unconstitutional laws to take effect at all? Pre-enactment review, though rare in practice, has precedents in advisory opinions or legislative processes. For instance, some states have mechanisms for pre-passage constitutional checks, and federalism cases like Printz v. United States in 1997, which invalidated parts of the Brady Handgun Violence Prevention Act for commandeering state officials, could inform a proactive system.

Real-World Examples: The Cost of Inaction on Rights Like the Second Amendment

Consider the ongoing saga of Second Amendment infringements, where reactive review has led to prolonged suffering and exorbitant costs. If the proposed pre-enactment scrutiny system were in place today, Americans would not endure measures like Colorado's Senate Bill 25-003, signed into law in April 2025, which imposes mandatory safety training requirements for purchasing most semiautomatic firearms, effectively restricting access to commonly used arms. Gun rights advocates have condemned this as an unconstitutional burden on the right to keep and bear arms, echoing the Supreme Court's holding in District of Columbia v. Heller in 2008 that the Second Amendment guarantees an individual right to possess firearms for self-defense, unconnected to militia service, and that outright bans on handguns are impermissible. Similarly, in New York State Rifle & Pistol Association v. Bruen in 2022, the Court struck down New York's restrictive concealed carry licensing regime, mandating that gun regulations must align with historical traditions of firearm regulation, without subjective barriers. Colorado's SB-3, by conditioning the exercise of this right on government-mandated training and approvals, appears to flout these precedents, inviting inevitable challenges.

This is not an isolated case. Numerous gun control laws have been defeated only after years of costly litigation, burdening taxpayers and citizens with mountains of legal expenses to reclaim rights that should never have been infringed. For instance, California's ammunition background check requirement was recently invalidated by the Ninth Circuit Court of Appeals, following extended court battles that drained public resources. In another example, a federal judge in 2022 blocked significant portions of New York's post-Bruen gun law, which attempted to restrict carrying in sensitive places, after protracted and expensive proceedings. The District of Columbia's handgun ban, struck down in Heller, reportedly cost the city millions in defense fees before its defeat. Such reactive processes not only delay justice but also impose financial hardships; states like Colorado face ongoing lawsuits over related measures, including excise taxes on firearms that critics deem unconstitutional poll taxes on Second Amendment rights. With pre-enactment review, these laws would be scrutinized against Heller, Bruen, and the Second Amendment's text—"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"—and rejected or amended upfront, saving billions in litigation costs nationwide and preserving liberties without the need for citizens to fight protracted battles.

The Proposed System: Pre-Enactment Scrutiny for All Laws

To address this, we must institute a comprehensive system where every proposed law, from local ordinances to federal statutes, undergoes mandatory scrutiny for compliance with both state and federal constitutions before passage. This could involve independent constitutional review boards, composed of legal scholars and retired judges, tasked with evaluating bills against the Supremacy Clause, Bill of Rights, and relevant precedents. If a proposal fails, it must be rewritten or abandoned. Such a process aligns with the Constitution's emphasis on limited government, preventing overreach at the source. Historical analogs exist; before Marbury, early state courts exercised forms of review to invalidate laws conflicting with state constitutions. Extending this federally would echo the framers' intent, as articulated in Federalist No. 78 by Alexander Hamilton, who envisioned the judiciary as a guardian against legislative encroachments.

Enhancing Judicial Accountability: No Room for Defiance

Equally critical is reforming judicial accountability. Judges, under Article III, hold office during good behavior, a clause interpreted to allow removal for misconduct via impeachment. However, impeachment has been limited to severe ethical or criminal lapses, with only 15 federal judges impeached in history, eight convicted. This leaves a gap for rulings that deliberately contradict Supreme Court precedents. In cases of malice or recklessness, such as a lower court judge ignoring binding decisions like those in McCulloch v. Maryland in 1819, which affirmed federal supremacy and implied powers, the offender should face immediate contempt charges and permanent removal. Mechanisms like the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 provide for investigations and sanctions, including suspension or referral for impeachment. Yet, these are underutilized. A strengthened system could mandate pre-ruling checks against SCOTUS databases, with automatic appeals or contempt proceedings for deviations. This would deter activism, as seen in criticisms of rulings that expand government power beyond constitutional bounds, such as in Jacobson v. Massachusetts in 1905, where the Court upheld police powers for vaccination but warned against arbitrary exercises.

Addressing Criticisms: Balancing Independence and Accountability

Critics may argue that such reforms encroach on legislative or judicial independence. However, independence does not mean impunity. The Constitution's separation of powers includes checks, like Senate confirmation for judges under Article II, Section 2. Pre-enactment review would enhance, not undermine, deliberation, much like the veto power limits hasty legislation. For judges, the Good Behavior Clause implies accountability; historical proposals, such as those in the Judiciary Act of 1789, envisioned removal for misbehavior without full impeachment. Modern codes of conduct, like the Code of Conduct for United States Judges, prohibit retaliation and demand ethical standards, providing a foundation for stricter enforcement.

Broader Implications: Preventing Historical Tragedies

Implementing this system would require congressional action, perhaps through a new amendment or statute, but the payoff is immense. It would prevent tragedies like the internment upheld in Korematsu v. United States in 1944, later repudiated as a grave error. In recent terms, the Court has struck down laws in areas like free speech, as in Free Speech Coalition v. Paxton, protecting against overbroad regulations. Proactive measures could avert such battles altogether.

Restoring the Rule of Law

Ultimately, disregarding constitutional limits disrespects the people, who ratified the document to secure their liberties. As the Supreme Court noted in its role, it protects rights by striking down violative laws. By embedding scrutiny at every governmental level, we reaffirm that power derives from the governed, not the governors. This is not radicalism but restoration, ensuring the Constitution endures as a charter of freedom, not a relic of forgotten ideals.

The time has come to chain the leviathan once more. Through pre-enactment review and judicial accountability, we can fulfill the framers' vision: a government restrained, a people free. Anything less invites the very tyranny the Revolution rejected. Let us act, for liberty's sake.

Michael J Badagliacco, “MJB”

Michael is a United States Air Force Veteran, father of five and grandfather of three, passionate about this country and the Constitution. 

Editor-in-Chief, Colorado DOGE Report.