Tuesday, April 9, 2013 – Essay #37 – Essay XI by Brutus – Guest Essayist: Mr. Robert Frank Pence, Founder, the Pence Group

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He was crying from all six of his eyes. Tears gushed together with a bloody froth. Within each mouth, with gnashing teeth, he tore to bits a sinner so that he brought much pain to three at once. The first was Judas Iscariot; the second is Brutus; and the other is Cassius.

In the Ninth Circle of Dante’s Hell are punished traitors against their lords. Judas, the principal offender against religious/ecclesiastic law, is being chewed by Lucifer for having betrayed Christ. Cassius and Brutus are ground down by Lucifer for having murdered their temporal lord, Julius Caesar (who, by the way, merits only a passing mention in Inferno 4 wherein he reposes with other virtuous pagans).

It ought to strike us as strange that the leader of the Roman Empire will remain forever in Limbo while several other pagans were placed by Dante in purgatory or paradise. Cassius and Brutus are not excused by Dante for having killed the tyrant who subjugated all of Rome, including the senate and all means of civil governance.  In Caesar we have one of history’s greatest examples of a tyranny wherein are unified all executive, legislative, and judicial powers. Dante was not afraid to put six popes and a number of imperial rulers in hell. He clearly understood the necessity of separating civil and religious powers. While Dante advocated a world emperor, he would brook no imperial crushing of religion.

Robert Yates, a/k/a the Brutus of Essay XI, decided to date his essay January 31, 1788. The date has a certain prescience attached to it. Thirteen years later, on January 31, 1801, John Marshall would be appointed as the Chief Justice of the Supreme Court of the United States of America. January 31st also marks the anniversary of another event that would have still been resonating in the minds of American colonists, including our Brutus. In 1606 Guy Fawkes was executed on January 31st for plotting against the English parliament and King James. Yates’ choice of Brutus as his nome de plume evokes deep emotions in Western culture.

Yates was born in Schenectady, New York in 1738 and died in 1801 in Albany. He was an attorney, politician, and surveyor. He was one of New York’s representatives at the Philadelphia convention to revise the Articles of Confederation. Yates was particularly interested in representation in the legislature. Alas, the convention intended much more than merely tightening the Articles. He warned against the dangers of centralized power and opposed the adoption of the Constitution. In 1777 he became a justice of the New York State Supreme Court and, in 1790, the Chief Justice. He ran for Governor of New York twice and lost.

The name Brutus congers up other images that would not have been lost on Robert Yates and his readers. The first is drawn from Shakespeare whose memorable line, “Et tu, Brute!” (Julius Caesar 3.1.77), punctuates the wrath that Caesar directs at one of the men who had just put a blade in him. The second example is drawn from one of Cicero’s rhetorical treatises, Brutus.[1] It was written c. 46 BC, about two years before Caesar’s murder on March 15, 44 BC.

Cicero’s Marcus Junius Brutus was born circa 85 BC and took his own life after the defeat at Philippi in 42 BC. Cicero’s Brutus wishes to hear of others still living while Cicero usually declines to write about living persons. Yates, in choosing to write as ‘Brutus,’ intends to deal with contemporary citizens and institutions. Cicero writes of great men who were unappreciated by an ungrateful population (Brutus, x, 41).

“Who, for example, can suppose that Lucius Brutus, the founder of your noble family, was lacking in ready wit, who interpreted so acutely and shrewdly the oracle of Apollo about kissing his mother; show concealed under the guise of stupidity great wisdom; who drove from the state a powerful king, son of a famous king, and freeing it from the domination of an absolute ruler affixed its constitution by establishing annual magistrates, laws, and courts; who abrogated the authority of his colleague so that the very memory of the regal name might be obliterated?” (Brutus, xiv, 53).

Thus, the name Brutus is further defined and refined by another Brutus who helped dethrone a king and preserved a constitution of “magistrates, laws, and courts.”

Alfred Kelly and Winfred Harbison wrote that the judiciary had no more claim to the final right of constitutional interpretation than the President or Congress. They criticized the Progressives’ distain of 5-4 decisions as particularly obnoxious. The Progressives viewed judicial review as undemocratic in that a few men, removed from popular control, could formulate the law of the land (that is, in their minds, constitutional questions should be based in part on evolving social needs).[2]

Who best, then, shall determine what the law is as it shifts on the sands of time?

The constitutionality of the Alien and Sedition Acts provoked just such a great controversy concerning the reach and power of the Supreme Court. In resolutions drafted by Thomas Jefferson for the Kentucky Legislature and James Madison for Virginia, they argued “the case for states’ rights, or, more properly, the primacy of state sovereignty and a limited national government.”[3] They argued against the granting of quasi-judicial powers to the executive branch. Stoutly opposed by the Anti-Federalists, “Even some Federalists joined the opposition. Speaking out against the Sedition Law, Hamilton warned ‘Let us not establish a tyranny,’ and John Marshall broke party discipline to cast the deciding vote against the law’s extension” (Kittrie, 89). In short, the executive branch did not have the power to deprive a person of liberty or the right to trial.[4]

In a speech delivered on February 15, 1913 at the Harvard Law School Association of New York, Justice Oliver Wendell Holmes, Jr. observed that “Vanity is the most philosophical of those feelings that we are taught to despise. For vanity recognizes that if a man is in the minority of one we lock him up, and therefore longs for an assurance from others that one’s work has not been in vain. . . .But let me turn to more palpable realities . . . . but in these days no one can complain if any institution, system, or belief is called on to justify its continuance in life.  Of course we are not excepted and have not escaped. Doubts are expressed that go to our very being. Not only are we told that when Marshall pronounced an Act of Congress unconstitutional he usurped a power that the Constitution did not give, but we are told that we are the representatives of a class ― a tool of the money power. . . .The attacks upon the Court are merely an expression of the unrest that seems to wander vaguely whether law and order pay.”[5]

Justin Butterfield (Essay #24) repeated George Washington’s warning that the Constitution might be ignored or re-interpreted (but not ‘directly overthrown’) and, thus, “sidestepped against the will of the people. . . .” I would add that it would be an equally egregious violation of the Constitution to make an end-run around the Constitution even in support of the (current) popular will of the people, even as transitory as it might be. The judiciary must, if it is to be true to its constitutional mandate, judge the law, and not make new ones, or shade, because of popular support for, or railing against, a perceived change in condition which, somehow, ought to be given legal sanction. The Constitution must be enforced as written or amended in the manner it allowed. If America wants to govern by plebiscite, we can do away with all the laws, the government, and the judiciary. Then we can enjoy the chaos. But chaos will trample liberty. The judiciary is designed to be the final safeguard of our liberties and, in doing so, it will safeguard its prerogatives and duties as set forth in the Constitution. Cato of Utica went in search of liberty and decided to kill himself with honor rather than submit to the rising tyranny of Caesar. Brutus sought to end Caesar’s tyranny in the only way he knew how. [6]

The Constitution, as wisely amended, put impediments in the way of those who sought lifelong appointments in the Executive and Legislative Branches; as to the former, elections and term limits on the presidency; as to the later, the requirement for continuous elections which reserve to the people the right to change leaders. This is not so with respect to members of the judiciary who, vested with lifetime appointments except for impeachable offenses, represent an attempt to shield judges from the power of the Executive and the Legislative Branches, and, of increasing importance today, from public pressure.

Brutus’ fear is that “the judicial power will operate to affect, in the most certain, but yet silent and imperceptible manner what is evidently the tendency of the constitution — I mean, an entire subversion of the legislative, executive, and judicial powers of the individual states” (Essay XI, 375-376). His fear, of course, is nothing less than his inability to decide who should have the last say on what the Constitution means.

At the end of the day, that is why the President must nominate justices wisely and why the Senate must exercise great wisdom, discretion, and unrelenting diligence in rendering its approval of, and not just its deference to, the President’s nominee.

Robert Frank Pence
Yale University

Read Essay XI by Brutus here: http://constitutingamerica.org/?p=3979

Robert Frank Pence  is founder of the Pence Group, a developer of shopping centers, hotels and the Dulles Expo Center. His civic interests include staging concerts for the troops, as well as serving on the board of educational and cultural institutions including The Kennedy Center, Wolf Trap, George Mason University, and American University. Mr. Pence is expected to receive his Ph.D. in Italian from Yale University this year. His dissertation is entitled, “Dante Alighieri’s Literary Debt to Marcus Tullius Cicero.”

 Mr. Pence’s wife Suzy serves on the National Advisory Board of Constituting America.  The  Pences are generous contributors to Constituting America, and their support has helped make our 90 Day Study of the Classics That Inspired the Constitution possible. We thank you, Mr. Pence! 



[1] Marcus Tullius Cicero. Brutus; Orator. Trans. G.L. Hendrickson and H.M. Hubbell, respectively. Cambridge, Mass.:  Harvard UP, 2001.

[2] Alfred H. Kelly & Winfred A. Harbison. The American Constitution Its Origins and Development. Third Edition. New York:  W. W. Norton & Company, Inc., 1963. 628-630.

[3] The Tree of Liberty: a Documentary History of Rebellion and Political Crime in America. Ed. Nicholas N. Kittrie and Eldon D. Wedlock, Jr. Baltimore and London: Johns Hopkins UP, 1986. 89.

[4] Subsequent administrations have tried, with varying degrees of success, in precluding civil trials. This has often occurred in war and/or in respect of military operations (i.e., during the presidencies of Lincoln and F.D.R. to name but two), cases involving Indian nations and treaties with them, and, most recently and most ridiculously, with warrants issued pursuant to the Patriot Act. Judicial review is at its best when it acts to bar the exercise of judicial power by the executive and legislative branches.

[5] Oliver Wendell Holmes, Jr. The Common Law & Other Writings. Birmingham Ala.: The Legal Classics Library, 1982. 89-99.

[6] Hence, the phrase, “Sic semper tyrannis.” The full quotation is, “Sic semper evello mortem Tyrannis” (literally:  “Thus always I eradicate tyrants’ lives”). It is a rallying cry against abuses of power. It is the official motto of the Commonwealth of Virginia and the City of Allentown, Pennsylvania. John Wilkes Booth wrote in his diary that he shouted the phrase after shooting President Abraham Lincoln on April 14, 1865, in part because of the association with the assassination of Caesar. Timothy McVeigh was wearing a T-shirt with this phrase and a picture of Lincoln on it when he was arrested for the Oklahoma City bombing. The phrase is also the motto of the United States Navy attack submarine named for the state, the USS Virginia (SSN-774) and the nuclear-powered cruiser USS Virginia.

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