Skallagrim
Banned
I think it's goal to be the former. I mean, if the goal is to let the law stand, you're not going to go hunting for stuff. You're only going to make a ruling that a law is unconstitutional if it really jumps out at you.
And we haven't mentioned the elastic clause for interstate commerce. And there might well be other clauses which can be viewed as elastic.
The goal is definitely the former. Lots of precedents hadn't been set, however. The way judicial review should work (or if it should exist at all) wasn't set yet, even. Ican easily imagine that even while attempting to strengthen the position of the federal government, Hamilton accidentally phrases it in a way that later comes back to bite him. (Posthumously, one imagines, since Burr will probably have shot him by then.)
Needless to say, there are several clauses that allow for wide interpretation. Needless to say, obsessive as I am about the law being precise and correct, I hate those irritatingly vague clauses.
Yeah but the EU was founded as late as 1993, relies on the member states already existing and being stable before joining the EU, most of them already being in NATO, and most EU member states already had departments of education and health before joining. If the USA was a "states rights wank" from the very beginning, there are a lot more problems with it, considering over the course of the 19th century the US conquered a whole continent and formed new states. With a very weakened federal government you'll see states making their own armies on the frontier because the federal army is too weak, and fighting Toledo Wars all the time with the federal government failing to mediate territorial disputes. Later, when free states declare that all slaves entering their boundaries are freed, there would be Toledo Wars between slave states and free states, with no clear conclusion because there would be no way to federally abolish slavery.
Also the federal tariffs were important for supporting infant industries who would otherwise collapse after influxes of British goods. So a few more states would be non-industrialized like the South--perhaps with only New England fully reaching its OTL industrial potential. Maybe a few states that weren't industrialized actually would be industrialized by setting their own tariffs and making the investments needed in strategic resources, but it wouldn't be very many of them. Also before air travel, landlocked states would effectively have to pay coastal states' tariffs.
If the situation you describe were to exist, it would be as you describe. But what's under discussion here is not that; for instance, the USA had federal tariffs in 1789-1859, too. Because such tariffs aren't unconstiutional by any stretch of the imagination. Perhaps I simply misspoke when I called the scenario a "states' rights wank". The thing is that when I say that, I mean something like OTL's antebellum period. That was a states' rights wank, I'd say: the federal government was tiny back then. (But still present enough to fight, for instance, the Mexican-American war, and certainly not so decripit that states had to form their own armies out of desperation.)
I'm not talking about a scenario where the original Articles of Confederation are maintained, for instance. Those, unless drastically amended, would very likely have resulted in what you describe.
...regardless of all other factors, the point is probably moot. In all likelihood, the wording of the ATL legal provision under discussion here would have presented no problems at all, and things would have gone largely as in OTL. But the other, more dramatically altered scenario, is of course worth exploring.