Brutus and the Court

I read Brutus about a dozen years ago. He remains, I believe, the ablest of the anti-Federalists, and the argument that he laid out against the Supreme Court has been confirmed by history. Joe Sobran summarizes the position:

[M]ere custom has settled the debate over judicial review. Nearly all Americans have long taken for granted that the U.S. Supreme Court has a virtual veto over all legislation, Federal, state, and local. The Court has been claiming and exercising this power for nearly two centuries, and few Americans see anything questionable about it.

This means that one branch of government, unelected, unaccountable to the people, and appointed for life, may, at its whim, effectively change the meaning of the U.S. Constitution. The president can veto any act of Congress, and Congress may override his veto; but neither of the other branches has a similar control over the Court’s rulings, however wrong or even downright batty they may be.

The concept of “checks and balances,” parroted in civics classes, doesn’t apply to the Supreme Court. The justices are appointed for life “during good behavior,” and once appointed they are out of control. Furthermore, most of the laws they strike down are state laws, not Federal ones, and the state legislatures have no defense against them. So much for “checks and balances.”
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The power to strike down laws isn’t mentioned, or even hinted at, in the Constitution. The Court’s few powers are set forth in a couple of paragraphs. Judicial review isn’t among them.

So where did this sweeping power come from? In Federalist No. 78, Alexander Hamilton, after assuring readers that the Supreme Court would be the “weakest” and “least dangerous” of the three branches, argued that it must necessarily have the power to nullify acts of Congress that violate the Constitution. This view has prevailed, but Hamilton didn’t face the problems that might arise if such a power were abused.

Others did, though. The pseudonymous “Brutus,” arguing against ratification of the Constitution, saw the danger of the judiciary very precisely and presciently: the justices’ power would be “altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.”

Brutus further warned that the Federal judiciary might overpower state courts and legislatures. And he saw nothing to prevent the Supreme Court from expanding its own power.

All Brutus’s dire prophecies have been fulfilled. Yet his arguments have never been refuted. Today we are paying the price for ignoring them.