Essay Read By Constituting America Founder, Actress Janine Turner

The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.

“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.

Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?

Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.

Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?

All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.

A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.

In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n 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 controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”

Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; 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. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”

In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]

The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.

As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”

Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]

Moreover, courts could disregard only those statutes which were clearly unconstitutional.

“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.

Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.

What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.

Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.

There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

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