Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at an argument that the Founders saw the judicial branch as an afterthought, and what Alexander Hamilton actually wrote about that concept.
THE STATEMENTS AT ISSUE:
“It is only in the small fraction of politically charged cases where the Supreme Court may divide along ideological lines…Americans have learned to view these cases as central to the court’s role….But we ought to ask ourselves whether deciding important cases in this manner is what the court should be doing. This was not, after all, the original plan. The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution….The judicial branch was something of an afterthought for them, because they believed that in a democracy, the elected branches would be responsible for governing the country.”—Excerpt from an opinion column in The New York Times on May 26 by Barry P. MacDonald, a law professor at Pepperdine University in Malibu, Calif., arguing that the Supreme Court can function very well with only eight Justices and that, with that number, the Justices might be more inclined to confine their decisions to resolving disputes between the parties rather than “making bold, sweeping and highly debatable proclamations about the meaning of the Constitution.”
“No legislative act…contrary to the Constitution can be valid. To deny this would be to affirm that…men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. 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 of the Constitution….It is more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order 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.”
– Excerpt from Federalist Paper No. 78, written by Alexander Hamilton and published in 1788, part of the founding era’s most important documents explaining to the people the nature of the Constitution then under consideration for ratification.
WE CHECKED THE CONSTITUTON, AND…
Americans love to debate constitutional questions, and are equally fond of making their own assessments of what it means. That is continuing a tradition that began soon after the Constitution’s final draft was completed and made public in 1787, and it continues to be a lively pastime today.
One favorite topic now is whether the Supreme Court is assuming powers of judicial review that it is not supposed to have. That is generally understood to mean the power to decide what the Constitution means and to enforce it against the actions of Congress and the Executive Branch. It is true that this authority was questioned during the constitutional ratification period, but it is also true that those directly involved in writing and promoting the basic document did not share that skepticism. They believed that an independent system of courts was vital to human liberty, and the rights guaranteed by the Constitution. To them, it was hardly an afterthought.
Historians generally accept that Alexander Hamilton’s essay No. 78, in the Federalist Papers, was a true reflection of what the founding generation believed about the judiciary. And it was less than a generation later – a mere 15 years – that Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.” That was what Marbury v. Madison stood for in 1803, and stands for today.
In every generation, it seems, revisionist ideas come back into vogue in the nation’s public discourse about the Constitution, and not uncommonly the suggestion arises that the Supreme Court is far too powerful and needs to be put back into the limited place that, supposedly, the founding generation wanted it to have.
This is sometimes offered as “originalist” thinking about what the Constitution truly meant in the 18th Century. True, there were “anti-Federalists” who fretted back then about the power that the new Supreme Court would have, as Hamilton recognized and as he sought to answer in Federalist 78. Hamilton’s view, surely, were closer to the prevailing sentiment at the time than were those who simply did not want the new Constitution even to be ratified. They did not get their wish.
Part of the problem in trying to make the case that the Supreme Court was not to have the power to check the other branches of the government is the belief that the Constitution mainly sought to create a democracy, where the elected branches were to have ultimate authority to act for the people. In the opinion column quoted above, Professor McDonald has asserted that a diminished role for the Supreme Court “surely fits better into the intended – and democratic – constitutional scheme.”
But, remember, so wise a Founder as Benjamin Franklin appreciated that what was then being created was not a democracy, but “a republic.” That was what he pronounced the new government to be as he left Independence Hall in Philadelphia on the final day of the Constitutional Convention.
In a republic, the people are sovereign, not the government, and the people choose representatives to act on their behalf, rather than acting as the government themselves. Their representatives are checked in the use of those powers by the Constitution itself, as worked out in actual “cases or controversies,” ultimately emerging as decisions of the Supreme Court.
The people, of course, retain the ultimate authority to amend the basic document. From time to time, there have been suggestions that this power be employed to curb the Supreme Court and its power of judicial review. That usually comes up when the court has done something that a segment of the population does not like – such as recognizing a right to racially desegregated public schools, or a right of gays and lesbians to get married.
However disturbed a part of the public may be by such rulings, the people have not used their ultimate authority to rein in the Supreme Court. That they do retain that authority acts as their check upon excesses or abuses in the Supreme Court’s use of the power of judicial review.
