As you may recall, for the past several years I have done a great deal of historical reading about Republics; how they were structured, what were their strengths and weaknesses, whether they were able to last a long time, and whether they were consistent with “empire”-sized dominions.
One of the revelations of that excursion was realizing that the US Constitution was hardly novel in its design of the Legislative and Executive bodies. The House of Representatives reflected the historical “assembly of the people” in both Ancient Rome and most medieval city-state republics, as well as the House of Commons in the UK. The Senate explicitly called back to the Senate of Rome as well as the House of Lords in the UK. The real radical departure in the US Constitution was the complete separation of the Judicial Branch from both the Executive and Legislative Branches.
In all ancient and midieval republics, the judiciary was an arm of the Executive. It enforced the law in individual cases, and judges served at the pleasure of the Executive, or else changed with each new Executive Administration.
The first revolution in the Judiciary followed the UK’s “Glorious Revolution.” No longer did judges in the UK serve at the monarch’s pleasure; rather, they held office for “good behavior,” a term that was explicitly carried over into the US Constitution.
As we know, Article III of the US Constitution enshrines this same principle, a de facto lifetime appointment. Once a Supreme Court Justice is appointed, the only limit on their power is their own self-restraint in interpreting the applicability of the Constitution to any issue. As we are currently observing with the majority radical reactionary wing of the Supreme Court, there appears to be little such self-restraint in evidence. And the Justices were deliberately selected for their relative youth, so that their appointments would last decades into the future.
This fundamental issue with the US Supreme Court was throughly understood and argued in 1789 by the anti-Federalist Brutus, whose views on the Judiciary likely prompted Hamilton’s famous Federalist #78, which claimed that the judiciary would be “the least dangerous branch.” I discussed that Federalist at length previously, concluding that Hamilton’s argument was:
In summary, lawyers selected for their lifetime of skill and acumen in understanding past precedents would essentially engage in statutory interpretation according to the long-established rules for such interpretation. Any errors they made would be no more than an “inconvenience” that would never “affect the order of the political system.” In any event, they would be powerless to enforce their decisions, and would have to rely on the Executive. Further, their errors they made could be remedied by Constitutional Amendments. Finally, if they did attempt to act like superlegislators, they would suffer impeachment and removal from office.
Brutus opposed the Constitution that was proposed in Philadelphia on a number of grounds that would be familiar to modern critics – that the “necessary and proper” clause regarding Congressional power would increasingly encroach on State’s rights, to the point of making State power vestigial compared with overweening federal power; that there were not nearly enough representatives for any given population, which would lead to wealthy plutocrats’ control of those bodies; that the sheer empire-size of the US as a whole militated against the ability to maintain it as a government of limited powers; that the ability to have a standing army would create a separate military interest group that would be difficult for civilian government to contain; and that there were no safeguards for federal criminal defendants, the specific criticisms of which were addressed in the 5th and 6th Amendments in the Bill of Rights.
But Brutus also spotted critical and radical differences between the proposed US Supreme Court and the semi-independent judiciary in the UK.
To begin with, the Judiciary in the U.K. solely had the power to interpret Acts of Parliament. They were without power to declare them null and void as against some higher standard. In letter XV, Brutus says:*
The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union. — I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution — much less are they vested with the power of giving an equitable construction to the constitution…. and …
The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorized in the last resort, to determine what is the extent of the powers of the Congress….
In England the judges are not only subject to have their decisions set aside by the House of Lords, for error, but in cases where they give an explanation to the laws or constitution of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgment of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions.
Indeed, in Letter XVI, Brutus sets forth a very convention scholarly view of the structure of republican governments:
When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.
Perhaps no restraints are more forcible, than such as arise from responsibility to some superior power. . . . The legislative power should be in one body, the executive in another, and the judicial in one different from either. But still each of these bodies should be accountable for their conduct.
. . . the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men, who depend upon the people for their places ….
Turning to the proposed US Constitution, Brutus says in Letter XI:
It is . . . of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications . . . The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.
In that same letter, Brutus sees that the Justices of the Supreme Court will be able to read their own preferences into ambiguities found in the Constitution:
This part of the plan is … to authorise the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions….
They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.
Brutus went into further detail in the vastness of the power being given to the Supreme Court in Letter XV:
I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control. . . . I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. They [the Justices] are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.
“they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven . . . there is no power above them that can control their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, … and in many cases their power is superior to that of the legislature.
The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.
. . . this court will be authorised to decide upon the meaning of the constitution, and that, not only according to the natural and ob[vious] meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. But no such power is in the legislature. The judges are supreme — and no law, explanatory of the constitution, will be binding on them….
. . . If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the Supreme Court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.”
In Letter XI, Brutus forecast the likely result:
[T]hey will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; … this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. ….
This power in the judicial, will enable them to mould the government, into almost any shape they please. … Men placed in this situation will generally soon feel themselves independent of heaven itself.”
In summation, Brutus argued that the US Constitution did not in fact lay out three equal branches of government, but rather a system of “Judicial Supremacy.” Indeed most contemporary legal scholars accept that this is exactly what the outcome has been.**
To the charges of Brutus, Hamilton’s response in Federalist Nos. 78 and 81 was, first, that there was nothing in the US Constitution
which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution.
No legislative act … contrary to the Constitution, can be valid. …. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred.”
As to Brutus’s most weighty charge, that the Court would become dictatorial in enacting their own pleasures and prejudices as the supreme law of the land, Hamilton wrote:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature
because poor Supreme Court decisions can be remedied by Constitutional Amendment:
A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
Hamilton several times cites the structure of the State government of New York. Thus it is instructive to review New York’s amendment process, which is similar to that of many States. So, here is the process in New York for amending that State’s Constitution:
In New York, the amendment must be introduced by sponsors in both the New York State Senate and Assembly.
Identical versions of the amendment must be passed in each house. If that occurs, it is referred to the next regular two-year legislative session which follows each of the general election of the members of the Legislature. Following second passage of the amendment by the newly elected Legislature, it is placed on the ballot for a statewide voter referendum. Once the amendment is approved by the majority of voters in the state, it is incorporated into the NYS Constitution. No supermajority is required.
By contrast, the US Amendment process is much more difficult. The identical language must be agreed to by 2/3’s of both the House and Senate, and then by 3/4’s of all State legislatures.
As the present reactionary Supreme Court majority, installed as younger men and women to assure decades’-long tenures, embarks upon a poorly hidden mission to overturn over a century of established civil rights and economic Court precedents, Brutus’s arguments ring particularly true.
One final note: although Brutus lost his contemporary argument with Hamilton, no less an authority than James Madison, often considered the intellectual architect of the US Constitution, came to agree with him, advocating for a Legislative “Council of Revision,” writing:
In the State Constitutions & indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.
Madison proposed that, following an intervening election, the Congress could override an adverse Supreme Court decision by a supermajority vote of 2/3’s or 3/4’s of both Houses, saying
It should not be allowed the Judges or the Executive to pronounce a law thus enacted Unconstitutional and invalid.***
*The collected Letters of Brutus can be found at the Teaching American History website.
** I am indebted to the essay Federalist #78 and Brutus’ Neglected Thesis on Judicial Supremeamcy, by Solomon Slonim
*** James Madison, Observations on the “Draught of a Constitution for Virginia,” Madison: Writings, 417.