In the fall of 1787, the Constitution was adopted by the attending delegates of the Philadelphia Convention. There were still many questions to be answered about the document, and a five year battle for ratification was about to begin. Three delegates refused to sign the document flat out- George Mason, Elbridge Gerry, and Edmond Rudolph. Their concerns represented rumblings throughout the fledgling country.
How would the people be represented?
Could this new federal government be trusted to restrain itself?
If it could not be trusted, were the written safeguards enough?
Battle lines were essentially being drawn between those in favor of ratification- The Federalists, and those opposed- The Antifederalists. The former group would ultimately prevail and become our nation’s first political party, but many of the questions asked by the Antifederalists were poignant, valid, and expressed foreshadowing of some of the conflicts our federal system would soon face. Reviewing some of these concerns today can help us find solutions to the problems that still plague us. Such a review will show us that the answers to the Antifederalist questions in fact lie within the principles of federalism itself.
Following is the first in a three part series extoling some the concerns of the antifederalists, how they are represented in US history, and how they can be addressed in a manner consistent with federalism.
“You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
-Thomas Jefferson, letter to C.W. Jarvis, 1820
Issue Number 1 The Judiciary
The Federal government is broken into three branches- the legislative branch, responsible for making law, the executive branch, responsible for enforcing the law, and the judicial branch, responsible for interpreting the law and determining its Constitutionality. The highest court in the land is the Supreme Court, made up of men and women appointed by the President to lifelong positions where they decide case law. Once appointed, they are then confirmed or rejected by the senate. The idea behind this process and the lifelong appointments was initially to create a court approved in part by the people, but set apart from changing political winds. In essence, the Supreme Court was to be immune from political pressure and decide matters constitutional or not without the fear of political repercussions.
The problem with this idea is that it requires men and women to ignore their personal opinions about the Constitution, a document even the founders disagreed on. It also requires them to make narrow decisions on specific constitutional questions without making broader judgements about law or morality. Human nature suggests this a tall task, and history provides the evidence.
Let us look at the Dred Scott case, decided in 1857. The question surrounding the case was whether or not Dred Scott, a slave, and his family were freed from their owner when they spent time residing in Illinois and later the Wisconsin territory. Both places previously abolished slavery. Ultimately the case made it to the Supreme Court where the majority decision, led by chief justice Roger Taney, decided that Scott had no right to citizenship and therefore could not be freed or bring suit in federal court. Not stopping there, the justices went even further in deciding that the Missouri compromise was void and that slavery could not be banned in the territories and slaves were not freed when residing or passing through free states. This decision, meant to end the slavery debate, is considered one of the greatest examples of judicial overreach in United States history. By going beyond the question at hand, Taney’s court greatly extended the power of the Supreme Court to review law not technically in front of them, and their decision ultimately fueled sectional tensions and hastened the onset of the civil war.
Look next at Roe v. Wade, decided in 1973. In a case that has greatly affected politics for the last forty three years, Norma McCorvey sued to seek an abortion in the state of Texas, where the procedure was largely banned. The case was won in favor of McCorvey aka “Jane Roe.” The key issue at stake in this case was whether or not the 14th amendment protected McCorvey’s right to privacy while making medical decisions. The majority decision was heavily based on the idea of “substantive due process,” a dubious legal principle which allows the court to strike down laws based on natural rights, or rights considered beyond the bounds of government. This is contrasted with “procedural due process,” where the 14th amendment is viewed as protection against the government by ensuring that properly enacted laws and associated legal proceedings are fair and impartial. The problem with substantive due process is that it has no firm legal bounds and allows for the direct injection of opinion into law. The Roe v. Wade decision further strengthened the use of this principle and the ability of the court to strike down law regardless of textual reference to the Constitution.
In both of the above cases, the Supreme Court greatly increased its own power with literally no consequences. The antifederalists were correct in their apprehensions. So what is the answer to their fears?
Federalism, and the proper issuance of power checks.
Putting such consolidated power into the hands of a single court was a bad idea. It can be corrected by eliminating life-long appointments and bringing the power of elections, tangentially through changing presidents, to the Supreme Court. This being accomplished by predetermined terms and in turn, more frequent turnover.
Other reforms have been purposed to include a written code of conduct and enacting a process for forced recusal, but these do not speak to the direct concerns of judicial overreach in the same profound way as set terms.
Both the presidency and legislative branches are subject to elected terms, and in the case of the presidency, outright term limits. It seems only natural to provide the same limits to the Supreme Court as well.
Of course, this action would require a constitutional amendment, but it would seem such a power check would fall in line with the early federalist’s ideas on the other two branches of government and would greatly real in the ever expansive power of the judicial branch.