I really do not know where to start with this Ars article. It is rightly concerned with so much, it is quite obviously biased and wrong about almost as much.
The article starts off more or less correctly, it is a surprise that the REAL ID Act is getting next to no coverage. And it is obvious that it has been attached to this military spending bill because there is no way the Congress, either house, could pass it without backlash (how big a backlash is another question, but there would be backlash) otherwise. For this reason, Mr. Bruce Schneier says that the REAL ID Act is a done deal, that there is no way it will fail.
As to the national id aspect of the bill, Mr. Schneier's web log entry is rather more informative, accurate, and meaningful than Ars' is. Either way, it is a significant concern. You do not want this bill to pass if you value your privacy at all. Or, at least, not if you value your privacy and your freedom more than you value your sheep-like security (yes, you can see my bias here). Mrs. Michelle Malkin is likely in favor of this bill, she will see the security concerns without really noting that the proposed solution is not an adequate fix. Others significantly upset about illegal immigration will also likely support this, as they will see its denial of licenses to illegal immigrants. However well or poorly Ars and Mr. Schneier argue on this aspect however, I think they have missed stating the vital point. The argument against this aspect of the bill, the immigration aspect, is the same as that against gun control. Illegal aliens will still drive, they just will not have licenses, and thus will not have even the minimal testing that the various departments of motor vehicles offer. To what extent is that already the case? It is hard to say, but it must be less when you can know someone with a license than when every illegal immigrant lacks one.
Moving on, we get to judicial review. I find it really curious that Ars can quote the relevant section of the Constitution and yet still find that judicial review is yet part of the Constitution. If it is, I do not see it. As best I remember from my history and government courses, judicial review started with Marbury v. Madison, when it first struck down a bill as unconstitutional. This ability itself is not enumerated in the Constitution, but was not challenged at the time, by the men who had written the Constitution, so it may be assumed that they consented to it as being compatible. At least, if they did challenge it, such challenge has not lasted to my ears.
Living as they did in a time when tyranny was primarily imposed by the executive, the governors of the separate colonies disbanding the legislatures, overriding the courts, interfering with them, it is not surprising that rather fewer checks were put on the Courts by our founding fathers than on the executive. Interestingly though, argument has been passed down to us of several early presidents, including Madison, widely held to be the primary author of the Constitution (unlike Jefferson, author of the Declaration, who was not even involved directly), criticizing Congress for passing bills beyond their Constitutional authority, and vetoing said bills. An example being a pension for widows of military officers. If Congress had not the authority to pass a pension for the widows of military officers, where comes the authority for it to pension for us all (Social Security)? Now likely, the Federal pension plans, being as they are passed as part of the compensation due to Federal employees are different, and under such, Congress may then have been able to pass that pension plan, but it did so as an act of humanity, not under its ability to pass laws necessary (I.E. paying government employees) to the exercise of the Government's function. Returning to my point here, our founding fathers feared many forms of tyranny, they saw the threat of democracy, they saw the abuse of the executive. I think however that they missed the possibly tyranny of the oligarchy, the tyranny that the unchecked judicial power could, and now is, making.
Ars certainly misses this possibility. Concerned that the separation of Church and State, itself not "constitutionally mandated" but rather an erroneous decision of the Warren Court that has been imposed on us by the courts since, might be eroded, Ars is up in arms over the possibility that Congress might use the Article 3 Section 2 clause 2 powers to restrict the scope of the courts.
In part, they are rightly concerned. Such a restriction might now serve good ends, it could be used to limit the damage to society by the decisions of Massachusetts and similar states. It could be used to prevent the ACLU and other rabidly anti-Christian organizations from further erasing our Christian heritage from the collective consciousness. These would be good acts, good ends at least, possibly, but debatably, good means to them. It could also, at some point in the future, be used quite the reverse, it could be used to restrict the Courts from enforcing the freedom of religion, for example. It is a two edged sword, quite capable of cutting both ways, just as the filibuster is (which is why the democrats and republicans have switched sides on the filibuster recently, it is now the democrats wielding the sword, not the republicans). Still, I think that in this case, like in many others, that the Article 3 Section 2 clause 2 powers are simply a tool, a tool that, unlike for example nuclear weapons, have no inherent good or evil content, they are more like a hammer, which can be used for good and evil, so it is the intent of the person, the act for which it is used, that determines the morality of the use (again, unlike nuclear arms, which cannot be legitimately used (except perhaps as a threat? but a threat implies that they might be, and they must not be…messy question)).