My thinking on this whole question continues to rapidly evolve.
Today I Googled "Marbury Madison usurpation" and found this.
Anybody who wonders about the way out of the morass of unconstitutionality we are faced with needs to go to the link and peruse all of its associated links. This is the way the Gordian Knot needs to be cut.
I would not be exaggerating if I said that this has awakened me from my dogmatic slumbers vis a vis the whole question of constitutionality and how it is to be decided, and by whom.
Conservatives continue to be bogged down in hurling recrimination and blame that a court whom we came begging to to secure our rights did not give them to us--all the while failing to notice that this selfsame court in actuality has no constitutional authority concerning these questions to be begged to. Until this root issue is squarely recognized, conservatives are just spinning their wheels and dancing to the statists' tune.
If you think that the judiciary (or Congress) is the place for these issues to be decided, you've already lost the game.
In fact, you've already chucked the Constitution out the window before the game even begins.
Please spread the word.