How The Supreme Court Constitutes America – Guest Essayist: William Morrisey

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In defending the establishment of the United States Supreme Court, Alexander Hamilton maintained that the absence of an independent judicial power had handicapped the government established by the Articles of Confederation. The way the Articles government had been structured made the rule of law–even the modest legislation enacted by Congress–more or less impossible.

In the twenty-second Federalist, Hamilton wrote, “Laws are a dead letter without courts to expound and define their true meaning and operation.” He continued, “To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence and authorized to settle and declare in the last resort a uniform rule of civil justice.”

This series of studies has shown how the Supreme Court has expounded and defined U. S. Constitutional law since 1789, “say[ing] what the law is,” as Justice John Marshall put it–and not just any law, but the supreme law of the land. The scholars here have shown how the justices have also gone beyond the important but limited role set down by Hamilton and Marshall, contributing instead to the transformation of the original American regime into a new regime, more centralized and bureaucratic, designed for some purposes that diverge from those of the Framers.

The Framers’ regime was a republic, distinguished from tyranny and from the absolute rule they called “despotism” first of all by its respect for and protection of the unalienable or natural rights which governments are duty-bound to secure. This is the link between Constitutional law and the laws of Nature and of Nature’s God enunciated in the Declaration of Independence. The Framers’ republicanism was first and foremost a natural-rights republicanism, as seen in the Constitution’s preamble, in which they state their intention to secure the right to life (“domestic tranquility” and “the common defense”), liberty (“The blessings of Liberty to ourselves and our Posterity”), and happiness (“the general Welfare”)–all by forming “a more perfect Union” and “establish[ing] Justice,” objects the Articles of Confederation had so conspicuously failed to obtain.

By contrast, the historical rights republicanism of the Progressive justices lends itself to an ‘evolving’ (mis)understanding of our rights whereby human laws effectively replace the permanent laws of Nature and of Nature’s God. This amounts to moving what George Washington called “the main Pillar in the Edifice of [our] real independence,” the American constitutional union, from the bedrock of the laws of Nature and of Nature’s God to the shifting sands of social change.

The Framers’ regime was also a democratic republic. Here, the people are the sovereigns. In Federalist 10, James Madison famously distinguished between the democratic regimes of antiquity where citizens assembled and voted directed on policies and laws, regimes prey to faction and conquest, from the modern republics where citizens elect “a small number” of their civic equals to run the people’s government. The Constitutional prohibition of any grants of titles of nobility would prevent the establishment of a European-style aristocracy on American soil. Despite the absence of women’s suffrage and the presence of slavery in most states, both the pool of eligible voters and potential representatives in America were far greater than in any other country in the world at that time. This was a republican regime founded on an impressively democratic foundation, a foundation to be widened further by the Civil War amendments.

Under Progressivism, the electorate democratized further, as women achieved the right to vote nationwide. However, the percentage of government officials elected directly or indirectly by this expanded electorate declined as Progressives successfully fought for a vastly augmented administrative state, staffed by unelected bureaucrats whose claim to rule rested not on popular consent but on professional expertise. America is now effectively what the Framers called a “mixed” republic–with one branch essentially aristocratic, a self-perpetuating hierarchy.

The possibility of a democratic republic that secures natural rights presents a serious problem. Why would majorities not oppress minorities, as they had done when an Athenian orator justified a war of imperial conquest by averring, “The strong do what they can, the weak suffer as they must”? The Framers responded to this dilemma by constituting America as a compound republic.

Madison introduces this term in Federalist 51, and he means two things by it. First, the United States will remain a federal republic, although the government of that federation will become stronger than it was under the Articles. The Framers strengthen but also limit federal authority by carefully enumerating the powers it may exert. The federal government will, for the first time, enjoy the authority to rule individual citizens in certain ways with no need for the cooperation of the states (laying taxes, organizing and regulating the militia, for example). But those powers not enumerated remain with the states and the people, individually and collectively, a point soon formalized by the Tenth Amendment. Perhaps the most important guarantee of federalism may be found in Article IV, section 4, which guarantees a “Republican Form of Government” to every state in the Union, in view of the fact that states with rival and contradictory regimes would far more likely break away from one another and eventually make war.

The Framers placed the second dimension of our compound republic into the federal government itself. Separated and balanced powers ensure that the legislative, executive, and judicial branches remain distinct but interdependent because they all wield, in Madison’s words, “the means of keeping each other in their proper places.” As late as 1892, the Supreme Court ruled in Field v. Clark that Congress may not give away its legislative power to the other branches. It was this “compound” design of the federal system and of the federal government which enabled Madison to argue that the body of the Constitution itself amounts to a Bill of Rights for the American people.

Progressives undermined both elements of the compound republic. They moved much of the initiative for legislation to the executive branch, and much of the actual law-writing to the bureaucracies. For its part, under pressure from the other branches, the Supreme Court staked out its own territory by claiming the right to exercise ‘broad construction’ of the Constitution. At its core, this means shifting the meaning of ‘construction’ itself from its original sense of construing the Constitution to that of constructing or inventing an ever-‘evolving’ or ‘living’ Constitution. This task was aided by the Court’s appropriation of the Bill of Rights–the most general or abstract part of the Constitution–for its own constitutional ‘turf,’ leaving economic regulation to the other two (really, by the 1930s, three) branches of government.

Madison had observed that representation enabled the United States to become the world’s first extended republic. The small city-states of antiquity were too weak to defend themselves against large, monarchic empires. Democracies needed to assemble all citizens in one place at one time, which limited their size. Representative or republican regimes only needed so to gather the people elective representatives, affording themselves the opportunity to extend and expand both the territory and the population of a popularly-governed nation. A people ruling itself in such a regime, especially when linked together in a confederation, could now defend itself against the worst tyrannies of the modern world. For the first time, an empire of liberty could face off against the empires of tyranny and despotism.

Progressives have not been so foolish as to destroy the extensive character of American republicanism. On the contrary, they used it to fight regimes ruled by kaisers, fuehrers, and commissars.  However, they have also tended to dilute the democratic and natural-rights character of the American regime by envisioning leagues of nations and other international bodies in which popular sovereignty exerts minute influence, again bowing to administrative agencies–in these cases staffed mostly by foreigners unlikely much to care for the unalienable rights of Americans.

Finally, the United States Constitution secures the American way of life by giving legal support for a commercial republic. A constitutional union ruled by market-friendly laws amounts to a sort of power grid for American enterprise, providing both a system of pathways for entrepreneurial energies to travel and also limiting those energies so that they do not ‘electrocute’ citizens’ rights. By requiring uniformity of duties, imposts, and excises, bankruptcy laws, currency, weights and measures, by establishing post offices and enacting patent laws, and by prohibiting state import taxes, the Framers made the United States into a vast free trade zone. Commerce guards our unalienable rights by promoting what the Scottish philosopher David Hume called “parties from interest” and discouraging “parties from principle.” By parties from principle Hume referred primarily to the violent and uncompromising factions that fought civil wars in seventeenth-century England. Following this line, Hamilton very nearly begins The Federalist with a criticism of fanatic wars. A regime that guards the unalienable right to property by leaving citizens at liberty to engage in commerce, thereby encourages them to direct their attention and energy to a form of peaceful competition that can be regulated by law. Parties of principle, whether religious or political, tend to despise law and break it. While based upon unalienable right–that is, upon principle–commercial life inclines toward compromise and amelioration; it does not foster violence.  It is telling that the American Civil War was sparked by the existence of slavery in the southern states and the question of its extension into the western territories–and that the notorious Dred Scott decision generated one of those sparks. Slavery denies the moral foundation of all commerce: the right to the product of your own, or someone else’s, labor, which in turn provides practical support for our rights to life, liberty, and the pursuit of happiness.

Unlike socialism, Progressivism doesn’t deny property rights altogether so much as it severely constrains them by distorting markets and skewing incentives to work by establishing a complex panoply of payments and services not to citizens generally but to the several socioeconomic groups designated to receive them. Because Progressivism eschews natural rights for historical rights, it appeals in its politics not so much to policies animated not so much by reason–by actions constrained by rational and legal boundaries–but by a particular kind of passion: compassion. As a passion or sentiment, compassion fits well with the assertion of ever-changing historical rights because passion wants no boundaries and seeks none. This has changed the American ‘power grid.’ A regime which provides both disincentives to commercial life (on the grounds that such a way of life is only an instance of another passion, greed) and inducements not to engage in that life (through payments not-to-work) has become increasingly bedeviled by new “parties of principle,” based if not on religious than on secularist fanaticisms.

By studying major cases that have come before the Supreme Court, as well as the lives and thoughts of some of the distinguished justices who wrote opinions on those cases, we give ourselves the chance to understand our own lives better. A constitutional court fundamentally serves as a ‘regime court,’ the place where cases bearing on the Constitution which constitutes our governmental system are heard, considered, and decided. A regime is no dull and irrelevant thing, merely a collection of ruling institutions that tells us what to do. A regime consists of those who rule, the institutions with which they rule, the purposes of those rulers and institutions, and finally the way of life of every person in the nation so ruled. Our hopes, thoughts, and actions turn out the way they do in large part because the regime in which we live shapes our expectations and habits. The ‘nine old men’ and now women who interpret the supreme law of our land know that very well, and in understanding them and their arguments we understand ourselves better.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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