The Anti-Federalists Were Right:

Predicting The Most "Arbitrary Government" From The Supreme Court

The Anti-Federalists Were Right: How The Opponents Of The Constitution Predicted The Most "Arbitrary Government" From The Supreme Court

Federalists were those that opposed the ratification of the United States Constitution by their respective State Ratifying Conventions. "Federal Farmer," whose identity is unknown, though scholars have put forward Richard Henry Lee and Melancton Smith as possibilities, wrote essays that were among the more important documents of the constitutional ratification debate. He warned in 1788 in Federal Farmer No. 15 that because "particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department [of the federal government] than in any other." He was right.

In order to understand how the Anti-Federalists have been proven correct, it is important to examine the representations of the Federalists, or those who supported the proposed Constitution, regarding the new federal judiciary and its Supreme Court. Only then can one understand not only where the Federalists and Anti-Federalists disagreed, but where the Anti-Federalists were proven right. Article III, Section 2, of the U.S. Constitution declares that "The judicial power shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States." This clause and others surrounding the judiciary were hotly debated.

What was the function of the Supreme Court in deciding cases "arising under this Constitution"? Anti-Federalist "Brutus" wrote the most extensively and directly in 1788 on the new federal judiciary envisioned by the Constitution. For that reason his arguments shall be the focus here. Brutus is believed by many scholars to be the penname of Judge Robert Yates. The "Brutus" essays appeared in New York during the ratification debates in that State, just as the Federalist Papers were published there at the time. This series of 16 essays published in New York most nearly paralleled and confronted the Federalist Papers. They are therefore of immense significance to understanding the debates over the ratification, and therefore by extension the original meaning of the Constitution. It is against the backdrop of Anti-Federalist arguments like those of Brutus, that the Federalist arguments can be viewed in the context of the debate that was raging and therefore be provided with meaning. Brutus No. 11 stated that "[t]he cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it. This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity... They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. "

Did the Federalists agree that the federal courts would possess the power of judicial review of legislation to determine its constitutionality? Though judicial review can still be disputed, on this point, the evidence indicates that there was no disagreement from the most respected and distinguished voices among the Federalist forces. Alexander Hamilton wrote in Federalist No. 78 in 1788 that that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” Federalist James Wilson told the Pennsylvania Ratifying Convention in 1787 that "[i]f a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law." Federalist Oliver Ellsworth told the Connecticut Ratifying Convention in 1788 that "[i]f the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void." The Federalists made clear that the very purpose of the Supreme Court's authority under this clause was to man the boundaries of government power and to make sure that should the federal government attempt to increase its own powers outside the scope allotted to it by the Constitution, the Supreme Court would declare such laws and acts void so that government could never exceed the grants of power provided to it by the Constitution. John Marshall, who would later become the Supreme Court's most famous Chief Justice who formally declared the role of judicial review in Marbury v. Madison (1803), earlier declared in the Virginia Ratifying Convention in 1788, "Has the Government of the United States power to make laws on every subject?...Can they make laws affecting the mode of transferring property, or contracts, or claims between citizens of the same State? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard:--They would not consider such a law as coming under their jurisdiction.--They would declare it void."

But how was the Supreme Court to decide the question of whether a law represents a usurpation of government power? In Federalist No. 78 Alexander Hamilton wrote that "[i]t can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." What then is the difference between "will" and "judgment"? How can a judge know if he is imposing his own predilections on the people, or doing his duty to judge faithfully in accord with the Constitution? Thomas Jefferson explained in a letter to William Johnson in 1823, "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." James Madison, the primary architect of the Constitution, made clear in a letter to Andrew Stevenson in 1826, "I cannot but highly approve the industry with which you have searched for a key to the sense of the Constitution, where alone the true one can be found; in the proceedings of the Convention, the contemporary expositions, and above all in the ratifying Conventions of the States. If the instrument [Constitution] be interpreted by criticisms which lose sight of the intentions of the parties to it, in the fascinating pursuit of objects of public advantage or conveniency, the purest motives can be no security against innovations materially changing the features of the Government." These are but only a few of many quotes from the ratification debates, and afterward from important Founding Fathers, that illustrate the intended role of the judiciary in making Constitutional determinations.

Instead, the modern Supreme Court upholds laws they should not, and overturns laws they should. They pay no heed to the original meaning of the Constitution, and incompetently disguise personal policy preferences by pretending the voice of 5 Justices truly represents the Constitution. Instead of looking to the original meaning of the Constitution, the Supreme Court has looked to "penumbras, formed by emanations." Instead of following the rules of construction of the Constitution as set forth in the Ninth and Tenth Amendments, the Supreme Court arrogantly declared in 2003 that "[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." The reason this line is so anathema to the Constitution is that properly translated, Justice Anthony Kennedy should actually be read as declaring, "As the Constitution deteriorates, judges in every generation can twist its principles in their own search for imposing their policy preferences." The fallacious notion of a "living Constitution" perversely pervades the legal academy and most of the federal bench. It now stands boldly in a case that serves as Supreme Court precedent. The majority of the Supreme Court today ignores Justice Clarence Thomas who says almost alone that "[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.”

Brutus No. 11 predicted, despite the affirmations of the Federalists regarding the intended role of the judiciary, that the federal courts "will give the sense of every article of the constitution, that may from time to time come before them. And in 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... [T]he constitution is not to receive an explanation strictly according to its letter; but more power is implied than is expressed." Brutus No. 11 specifically and presciently states as examples that the general welfare clause and the necessary and proper clause of Article I, Section 8 would be interpreted to provide Congress the "liberty, to do everything, which in their judgment is best." He argues that even if he were to accept the Federalist arguments regarding the limited nature of various clauses not amounting to unlimited grants of power to Congress, "the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. 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." This is precisely the case with the modern Supreme Court. The commerce clause is "interpreted" with great "latitude" to extend to almost any possible regulation, the general welfare clause has been interpreted to allow the federal government to tax and spend for whatever they deem "best," the necessary and proper clause is seen as broadening the enumerated powers by providing Congress with limitless "means" to accomplish the grants of powers which are themselves interpreted to be limitless. Brutus No. 11 correctly notes that "[t]his power in the judicial, will enable them to mould the government, into any shape they please... [T]hey are authorised to construe its meaning, and are not under any control."

Brutus No. 14 further predicts exactly how the Supreme Court will abuse its power. He prognosticates that "in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds... In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers." He predicted that "a number of clauses in the constitution, which, if explained in an equitable manner, would extend the powers of the government to every case, and reduce the state legislatures to nothing." That federal power continues to grow with the unconstitutional blessings of the federal judiciary, as the sovereignty of the states is continuously invaded, is a current proven reality. ‎"One searches the [Supreme] Court’s opinion in vain for any hint of what aspect of American life is reserved to the States," Justice Thomas declared in a dissenting opinion in 2005.

Brutus No. 14 argues that the Supreme Court "would be authorised to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general [federal] government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states." In doing so the federal judiciary will "not to confine themselves to its [Constitution's] letter... [T]hey will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter... What the principles are, which the courts will adopt, it is impossible for us to say. But taking up the powers...they may, and probably will, be very liberal ones [rather than a more strict construction]." A Supreme Court majority opinion literally looked to "liberty of the person both in its spatial and more transcendent dimensions" and "[f]reedom" that "extends beyond spatial bounds" in 2003 to render a ruling. There can be no better example of what Brutus assumed would take place with the Supreme Court, making a mockery of the judicial role by looking to the perceived "spirit" of the Constitution over the "letter" of the Constitution. Supreme Court Justice Stephen Breyer today embodies this in his book on Constitutional interpretation where he nonsensically argues on behalf of the "living Constitutional" wing of the Supreme Court that his job as a Supreme Court Justice is to "search for permanent values underlying particular constitutional phrases" and to apply "those values to complex contemporary circumstances." Taking Breyer at his word that this is actually what he does as a Justice, this search for broad and generalized values is still precisely nothing more than what Brutus described as acting in accord with what Breyer as a judge believes or pretends is the "spirit" of the Constitution, rather than following the Constitution according its "letter." Breyer further writes, "In carrying out this basic interpretive task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law... I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective." He claims to take "pragmatic approaches to interpreting the law." The problem is that this so-called "pragmatism" is nothing more than his own predilections and only a manifestation of his personal policy preferences. Breyer blatantly admits placing "purposes and related consequences" above text, history, and tradition. The arguments of the Federalists about the limited role of the judiciary were therefore meaningless, because Supreme Court Justices today believe it is Constitutional "purpose" as the judge sees it, and achieving the desired "consequence" or outcome, that are of significance. The Constitution is certainly not the clear demarcation of federal power that the Federalists promised the judges will stand to protect, but rather now represents nothing more or less than the "values" or "spirit" that Breyer has chosen to read into various Constitutional phrases. Breyer states"judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real-world consequences and taking those consequences into account." But "real-world consequences" is tantamount to bestowing upon himself the power of imposing his policy preferences above that of the legislature and the Constitution. In the words of Hamilton, this is pure "will" rather than "judgment." For if Breyer would prefer a certain "real-world consequence," the Constitution will demand it. If he does not, it certainly will not require it. We are then living under the rule of whim, the rule of Breyer, rather than the rule of law. What an abandonment of the Federalist No. 78 where Hamilton assured the Constitution's foes that the federal judiciary "may truly be said to have neither FORCE nor WILL, but merely judgment"! Yet Brutus saw during the debates surrounding whether the Constitution should be ratified that this was exactly what would take place.

Aside from the predicted refusal of the courts to apply the Constitution faithfully, Brutus understood this would result because of the unchecked power that resides with the Supreme Court. Brutus No. 15 warned, "I have said that the judges under this system will be independent in the strict sense of the word... [T]here is no power above them that can control their decisions, or correct their errors... [I]n many cases their power is superior to that of the legislature." He said that "[t]he supreme court under this constitution would be exalted above all other power in the government, and subject to no control." The response of Hamilton in Federalist No. 81 was that the Anti-Federalists were not giving proper "consideration" to "the important constitutional check...of instituting impeachments" and the power it "would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations." How pathetic do these words now sound! How hollow do they ring! The power to impeach federal judges for "deliberate usurpation" was quickly abandoned by interpretation as the power of impeachment was said to apply only to criminal activity on the part of the Justices, not realizing that the highest crime is to usurp power not granted under the Constitution. Not only that, but our modern Congress consists of Constitutional ignoramuses that can hardly be trusted to utilize this impeachment power competently, let alone properly. The primary checks on the Supreme Court today are the court seeing the error of its own ways and reversing a prior decision, or else the people responding to ruling with a Constitutional Amendment which was intentionally made far more difficult to achieve than a ruling by a mere five Justices on the highest court. The Supreme Court now sits as a standing Constitutional Convention amending the Constitution at will with little way to oppose her power. Thomas Jefferson understood and opposed this when he wrote in 1819, "The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they may please." Brutus was undeniably correct that there is no higher power than the Supreme Court, and therefore no way today to stop it from its all too evident usurpation by unconstitutional decision making. As Supreme Court Justice Robert Jackson accurately and famously wrote, "We are not final because we are infallible, we are infallible because we are final." As Brutus predicted, the Supreme Court is indeed far from infallible on matters of Constitutional interpretation, yet unfortunately still nonetheless remains final.

Felix Frankfurter, who himself became a Supreme Court Justice, was correct when writing to FDR in 1937 saying, "People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand." Brutus No. 14 predicted this precise phenomenon when he said that the Supreme Court "will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people... [A] series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion." Brutus's fears can be seen in the expression of current Supreme Court Justices as well. Justice Antonin Scalia has said in dissent that our constitutional "system is destroyed" as "the smug assurances of each age are removed from the democratic process and written into the Constitution... [T]his most illiberal Court...has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. " Justice Scalia wrote in another opinion, "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." Brutus words are alive and well in modern day America, though Brutus would not be surprised because to him this was the easily foreseeable outcome of an unchecked federal judiciary endowed with the awesome power of interpreting our Basic Law.

Brutus No. 14's criticism of the Constitution's judiciary serves as a prophetic conclusion to his arguments. He wrote: "They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people... One adjudication will form a precedent to the next, and this to a following one... In this situation, the general [federal] legislature might pass one law after another, extending the general [federal] and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution. If the states remonstrated, the constitutional mode of deciding upon the validity of the law is with the supreme court; and neither people, nor state legislatures, nor the general [federal] legislature can remove them or reverse their decrees... [W]hen 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 control them but with a high hand and an outstretched arm. " Given the foreshadowing of the modern Supreme Court by Brutus, it is not hard to see why Federal Farmer No. 3 decries, "I confess in the constitution of this supreme court, as left by the constitution, I do not see a spark of freedom."

Our task is not to despair, but for the American people to loudly demand a return to the principles of the Federalists and restore the judiciary to its intended role, to have our modern day Supreme Court act in a manner that proves the Federalists were right about the judiciary, rather than serve as an example of the presaging powers of the Anti-Federalists.