by Martin and Marcia

In considering the latest installment delving into the Federalist Papers (No. 81), it is helpful to look at the anti-Federalist arguments of Brutus in his 12th essay, part 3 on the power of the judiciary. It is this essay that Hamilton is responding to in No. 81. (The anti-Federalist essays, 16 in all, were published in the New York Journal from October, 1787, through April, 1788, during the same period The Federalist was appearing in New York newspapers.) Some essays of more recent vintage are also interesting for they examine the debate in light of American judicial history.

Concerns raised by Brutus:

Brutus argues that the power vested in the judiciary is so vast as to be a de facto grant of legislative authority. According to Brutus, while the court may not have direct power over the legislature to write laws or guide their composition, the rulings they make as to the constitutionality of laws will act as an implicit brake on how the legislature proceeds.

The separation of powers gives the court the power to decide upon the meaning and construction of the Constitution itself. In Brutus’ view, the power of the court is “supreme and uncontrollable” because it is their purview to determine “what the Constitution means.” As a result, Brutus reasoned that the judgements of the judiciary would become the basis of rules guiding the legislature in the execution of their role.

Perhaps the most important statement made in this essay is a point which Hamilton does not directly address in No. 81. Brutus argues that the judiciary will not confine themselves to interpretation of the actual words of the Constitution, but instead apply themselves to its “spirit and reason”.

We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

Brutus points out that the goals and purposes of the federal government are specified in the Preamble to the Constitution. He immediately focuses on the phrase “to provide for the general welfare” and expresses concern that this will be used to provide latitude for the court to exercise unbounded jurisdiction over not only federal, but local affairs.

Brutus extends his arguments beyond a dissection of judicial structure. He worries that the Preamble will be interpreted by the judiciary to specify a union of the people, rather than a union of states. If this be the case, the federal government has within its jurisdiction the power “to subvert and abolish all the powers of the state governments.” If the Constitution is interpreted in this way, legislative power may be applied to almost anything.

This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one, to authorize the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.

Brutus is probably among the first to raise the specter of the “necessary and proper” clause being a source of potential unlimited extension of power – in spite of the arguments of a “voluminous writer in favor of this system” (Hamilton) to the contrary.

On this point, David P. McGinley has an interesting piece in American Thinker entitled Our Dying Constitution. In it he makes the bold statement that “Our Constitution is almost dead” because it has been subjected to judges who “ignore the actual text of the document” or who “redefine” it to reflect their own personal beliefs and feelings.

Looking back at the warnings put forth by Brutus, this is exactly the concern he expressed.

We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

McGinley provides numerous examples of the liberties judges are taking with the Constitution including:

The redefinition of the “Commerce Clause”

The rebranding of the “Establishment Clause”

The twisted interpretation of the “Takings Clause”

The creation of a “right to privacy” from the 14th Amendment as a justification for abortion

The reversal of meaning of the “Equal Protection Clause” to encompass affirmative action.

His summation puts things rather succinctly:

When judges disregard or redefine the plain words of our Constitution or make up things with absolutely no textual support, they render the document meaningless. In keeping with this practice, its proponents have invoked the Orwellian term “living constitution” when in actuality they have put it on its death bed.

Again to this point Jeffrey Reed, In his recent post at Constituting America, contends that Hamilton had it “at least partially wrong” when he argued in Federalist No. 81 that concerns over the court interpreting the Constitution’s spirit were unnecessary and that this was a “phantom” threat.

As an example, he cites the 1954 ruling Brown vs. Board of Education. While the public policy outcome was unquestionably correct, it was not the court’s place to make law. Reed makes the argument that the ends do not justify the means.

Frankfurter and Jackson conceded that they could not find anything in the original purpose of the Fourteenth Amendment that warranted the Court’s decision in Brown. Jackson said that the Court should just admit that it was “declaring new law for a new day.” At least according to these jurists, Brown was definitely not a case of simply declaring a law unconstitutional.

Reed also invokes Orwell in his conclusion:

Isn’t this much ado about nothing? After all, the Court arguably accomplished the right result, only faster than Congress could do. It does matter. The issue goes to the heart of our republican form of government. The United States is not an oligarchy, where power is vested in a small group—in this case, the United States Supreme Court. Such forms of government are dangerous and have resulted in disastrous consequences. In fact, author George Orwell warned of such danger in his novel 1984. No, the United States is a republic, where officials are representatives of the people, who must govern according to the limits of the Constitution. That includes the United States Supreme Court.