When the 'Other' Founding Fathers Blew the Whistle on Supreme Court Perversion


Later this year, President Joe Biden’s bipartisan commission on potential changes to the U.S. Supreme Court will release its findings on matters including court packing and term limits.

For some, structural “reform” offers a means to maintain the high court’s supposed apolitical nature. For others, the court’s ideological structure fuels their partisan, yet honest, ire.

These separate factions, despite their differences, recognize that one of the fundamental utilities of the Supreme Court is its historic role as a vanguard for the immense expansion and excessive abuse of government power.

When exploring the founding era, most Americans are familiar with those who constructed the intricacies of the republic’s constitutional order and penned the collection of essays used to propagate those viewpoints — the compilation of newspaper articles commonly known as The Federalist Papers.

While James Madison, Alexander Hamilton and John Jay were certainly intelligent men, there happened to be another group of individuals who challenged the commonplace notions of popular sovereignty, democracy, governmental power and the role of government in society.

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Opposing constitutional ratification, the Anti-Federalists argued in favor of the preservation of state constitutions and legislatures, a constitutional declaration of rights and a decentralized governmental and economic apparatus.

Anti-Federalists also opposed a strong national legislature, an anti-monarchical executive office and the power of judicial review.

These critiques stemmed broadly from the notion that democracy and popular sovereignty would be expressed most functionally in smaller geographic territories governed under more proactive state legislatures and courts.

Many Anti-Federalists feared that the proposed Constitution would grant sweeping powers to the federal judiciary, manifesting in broad constitutional interpretations that would grant the general government increasingly more undelegated and unexpressed power.

Were the Anti-Federalists right?

In the eyes of Anti-Federalists, these powers would inevitably be abused.

Under the pseudonym Brutus, one Anti-Federalist set out to illustrate how the Supreme Court would lead this change as a branch of government completely alienated from “the people and the legislature.”

In his 11th and 12th essays, he argued that the Constitution empowered the judiciary with a role “altogether unprecedented in a free country.” The high court’s pen would carry with it the force of law, but no mechanism would exist to “correct their errors, or control their adjudications.”

Brutus predicted that the court would adopt a “very liberal” concept of constitutional jurisprudence, for the justices would be tasked with supplying meaning to the Constitution and would have no fixed rules or standards to determine a text’s constitutionality.

Set in this position, the courts would often explain the text of an act “according to the reasoning spirit of it, without being confined to the words or letter,” Brutus said.

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Lending to the expansion of judicial power, the Constitution’s “mode of construction” vested Congress the power “to do everything, which in their judgement is best.” This enabled the legislature to do all that is necessary and proper to satisfy the political ends and guarantees stated in the Constitution’s preamble.

With such a model in place, Congress would control “more power [that] is implied, than is expressed,” Brutus wrote.

By shifting the Constitution’s structure of power from enumerated to implied powers, Congress and the judiciary would share a mutual interest in expanding governmental power because it “will enlarge the sphere of their own authority,” he said.

“Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise,” Brutus argued.

In a “silent and imperceptible manner,” the courts will undoubtedly “lean strongly in favor of the general government,” he said.

Brutus’ prediction illustrated how the judiciary could mold the shape of the general government through the power of interpretation. Despite the word and letter of the Constitution, the courts would extend their jurisdiction far beyond the original limitations.

One must only go as far as to examine the transformation of the Constitution’s Commerce Clause and the interpretation of the Bill of Rights to acknowledge that many of Brutus’ predictions were right — Congress and the Supreme Court have worked hand in hand to expand the power of the state.

These pretensions would illustrate why Democrats, along with others on that side of the political spectrum, endeavor to grant the high court more authority: A powerful judiciary will usually side with the government.

According to the “Records of William Spooner,” the 19th-century philosopher and abolitionist Lysander Spooner once claimed, “but whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

On one hand, Spooner’s assessment is correct in that it exemplifies how the Constitution’s letter and word may be distorted to appease a particular set of political beliefs. Nevertheless, Spooner forgets that the Constitution is by far the best mechanism ever devised to secure the rights and liberties of a people, while endeavoring to limit the power of the state.

As for Brutus and the Anti-Federalists, their concerns about the Supreme Court’s unimaginable powers remain valid to this day — especially as Biden and a chorus of America’s left-leaning reactionaries push to further empower the high court.

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Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.
Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.