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Judicial Activism Part IIIThomas Brewton / TheViewFrom1776 -- Having briefly surveyed the 18th and 19th century economic and political developments affecting the disposition of the Supreme Court (Part I and Part II), let’s now turn to what the writers of the Constitution intended to be the role of the Federal judiciary under a Constitution of limited powers.
After the Constitution was written in 1787, there ensued a two-year period of intense debates in the states before it was ratified in 1789.
Those opposed to the Constitution, the Anti-Federalists, argued that the War of 1776 had been fought precisely to rid the states and their citizens of the arbitrary powers asserted by George III and his Parliament. Those abuses of power had chiefly imposed upon the rights of private property, as in levying taxes without colonial participation or consent, quartering British troops in private homes at the homeowner’s expense, and the like. They were in no mood to create a new George III with passage of a Constitution that they feared would confer too much power upon the new Federal government.
Those favoring the Constitution, the Federalists, argued that the Articles of Confederation, under which the nation operated immediately after the War of Independence, left the nation powerless to defend its interests in the international sphere and left open the way to rancorous disputes among the states. They contended that a stronger national government, but one with clearly defined and limited powers, was essential to the future welfare of the nation.
To urge ratification of the Constitution, John Jay, James Madison, and Alexander Hamilton wrote 84 essays that were published in newspapers and pamphlets throughout the nation. The papers came to be known as The Federalist, and they are, together with Madison’s notes taken during the Constitutional Convention, the clearest, most well-organized, and the most authoritative source we have for understanding the intentions of the men who wrote the Constitution.
Each aspect of government under the Constitution is covered by the Federalist papers. Numbers 78 through 83 address the Federal judiciary.
From the following extracts it will be clear that:
1. First and foremost, the judiciary was intended to be a restraining influence, rather than an activist center for developing Federal policy or arbitrarily imposing new social justice doctrine upon the states and the people. It was, in nautical terms, to be a sea anchor the would slow the movement of government and keep it always headed in the proper direction, rather than acting, as it does today, as a destabilizing force impelled by the volatile opinions of the liberal-socialist segment of the public.
2. The founders viewed the Federal courts as inherently the weakest of the three branches, of which the other two were the executive and the legislative. That assessment was, however, subject to an essential condition: “so long as the judiciary remains truly distinct from both the legislature and the Executive.” In judicial activism, the courts assume both the role proper to their function, and that of the legislator, in order to “discover” new rights not found in the language of the Constitution or to interpret Congressional enactments in ways that Congress explicitly disavows. Combining the judicial powers with those of either the legislative or executive branch is a prescription for ending political liberties, as the reigns of the Stuart kings had demonstrated in England.
3. Except for cases arising under powers specifically conferred upon the Federal government by the Constitution, none of the traditional powers of the state courts were to be taken from them by the Federal judiciary. Yet in recent years Federal courts have, for example, ORDERED a state court and state legislature to impose new taxes that were expressly forbidden by the state’s constitution, in order to fund Federal mandates. Matters such as abortion historically came under the heading of states’ so-called police powers to regulate the health and well-being of their citizens. In Roe v Wade, however, the Supreme Court both invaded the Constitutional rights of state legislatures and state courts, while “discovering” the Justices’ personal preferences for social policy within the “shadows and penumbras” of the Constitution.
4. The founders did not conceive it to be within the power of Federal judges to legislate simply by asserting their personal opinions. Nor did they consider it within the constraints of the constitution for judges to employ ever-changing public opinion as a rationalization for permitting the majority to abrogate Constitutional rights of individuals, as has been done since the 1930s, when the Supreme Court declared that private property rights guaranteed by the Fifth Amendment are subordinate to other parts of the Bill of Rights and to the 14th Amendment. Private property rights ("No taxation without Representation"), of course, were the primary reason for the 1776 War of Independence.
5. At the same time, the writers of the Constitution did not believe it to be within the powers of the judiciary to assert the will or preferences of judges over the will of the people expressed through legislative enactment. The judges’ presumptions about the spirit of the Constitution are no basis for arbitrarily discovering Constitutional rights unknown in history; they are to be bound by the Constitution, legislative enactments, and legal precedent. Only the people via Constitutional amendments, can impose new social or political policy not enumerated in the Constitution.
5. The founders did, however, believe it inherent in the judicial power to overrule statutes that clearly violated the provisions of the Constitution, as well as to adjudicate cases arising when the provisions of different statutes appeared to be in conflict. While the judiciary had no power to substitute its will for that of the elected representatives in the legislature, it had the power to overrule legislative enactments that clearly conflicted with the expressed will of the people.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.’’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;.......
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing........
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It 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. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, 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.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former........
It 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. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. 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.....
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, 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. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.
Federalist No. 79
Covers the salaries paid to judges and need for their independence.
Federalist No. 80
Covers types of cases and issues falling under Federal courts.
Federalist No. 81
The arguments, or rather suggestions, upon which this charge [objections to the powers accorded the Federal judiciary by the Constitution] is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. .....
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution;......
Federalist No. 82
The principles established in a former paper teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.....
Federalist No. 83
Covers argument regarding whether Federal courts need to incorporate trial by jury.