The U.S. Supreme Court is like one of those dinosaur reconstructions at which children gape when they are taken to a museum. Not only is the Court today an imaginative reconstruction of something that no longer actually exists, it is so huge an institution that few Americans are able to take it in all at once. From one side—the side of people who respect the old republic of Washington and Jefferson—it is a ravening dragon that has devoured the Constitution; walking around to other sides, however, social conservatives, civil-libertarian leftists, and the proponents of vice and big government see a radiant and benign creature that will save them from the evils of democracy.
There is no need to go into detail: Opponents of abortion, not convinced by Roe v. Wade, still seek redress from the Court that legalized murder; the leftist-“conservative” lawyers at legal think tanks continue to crusade against the tyranny of local government, while the lovers of absolutist bureaucracy, though occasionally foiled by the Court’s Republicans, know that, in the long run, the continued growth of government at the expense of people is in the hands of the federal judiciary.
In general, the conservatives’ approach to the Court is Sidney Smith’s advice to “trust in God and take short views,” though, in this case, the “god” is the Republican Party. Elect enough Republicans to Congress and to the White House, and we shall eventually have the Court we want. Perhaps they are right, but, even if they are, it is an argument that undercuts itself. In theory, the competition between the branches and the independence of the Court were supposed to act as a safeguard against tyranny and against violations of the constitutional order. Roe v. Wade, whatever one thinks of abortion, was bad law and a grotesque usurpation of power. Decades have gone by, and, with every passing year, even the conservatives on the Court have made it clear that overturning Roe would be an unthinkable act of revolution. Congressional leftists of both parties have also made it plain that they intend to halt any appointment of a judge who will not unequivocally declare his support for the illegal decision on abortion. Where, then do pro-life conservatives turn for redress? Certainly not to a constitutional system based on the checks and balances exerted by competing branches of the federal government. Instead, they turn to politics. In other words, the Court, which was supposed to be a safeguard against the tyranny of the majority, is now to be rescued by a conservative voting majority (which may well never exist).
The theory of checks and balances was elaborated by Montesquieu (Spirit of the Laws, VII.16), who understood but imperfectly the British system. The Framers of the Constitution, in adopting it, also kept their eyes on the reality of the actual British system of their own day, one that gave order and prosperity at the price of corruption and arbitrary rule. Some, no doubt, believed that, by distributing the powers of national government among three branches, they were providing sufficient insurance against the reestablishment of the corrupt system of George III, in which a bribed Parliament, subservient to the king and out of touch with popular sentiment, recklessly provoked the conflict that cost the empire her American colonies. Wiser heads did not.
Those who put their trust in Montesquieu’s theory were to be disabused quickly by the realities of human nature. Unless the officers of the three branches are drawn from competing social classes (which do not intermarry), there is little to prevent them from forming a cartel and ruling as they see fit. Near the end of the Roman Republic, a power struggle between the senatorial class and the commercial class resulted in the law courts being reserved to the equestrian order; in the end, however, as Ernst Badian has shown, it was Cicero’s policy of concordia ordinum—the compact between the rich (the equites) and the powerful (the senatores)—that prevailed.
The wise men of 1787, as suspicious of the absolutism of an entrenched elite as they were of mob rule (which they called “democracy”), never intended the Supreme Court to hold ultimate or absolute authority over decisions made by all American governments. In constitutional questions, its power was supposed to be largely advisory, and, as the authors of the Federalist insisted, Congress would hold the threat of impeachment as insurance against the Court’s misbehavior.
Early critics of the Constitution, however, were more suspicious, and they regarded the Court as a potential threat to republican government. A New York pamphleteer (signing himself “Brutus”) feared that too few restrictions had been placed on the Court and that, under the principle of equity,
they will give the sense of every article in 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.
In Federalist 81, Hamilton answered, more than a little disingenuously, that
there is not a syllable in the plan . . . 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.
Mercy Otis Warren (whose brother, James Otis, had sparked the colonists’ resistance to the British Admiralty’s invasion of property rights) was unhappy with the appellate provision, which would force poor men to travel great distances to trial, a hardship she regarded as “an unwarrantable stretch of power over the liberty, life, and property of the subject through the wide continent of America.” A more general fear was that the Court would be in a position to increase its power, and Maryland ratified the Constitution with a number of stipulations, including “That the supreme federal court shall not admit of fictions, to extend its jurisdiction.” New York included a similar provision.
George Mason of Virginia was troubled by the apparent power of the federal judiciary to override state courts, and, although he was answered both by future Chief Justice John Marshall and by Judge Iredell of North Carolina, his fears proved justified. Mason understood that the consequences of making the Court potentially the supreme arbiter of justice in the United States went beyond the judicial branch:
For if your state judiciaries are not to be trusted with the administration of common justice, and decision of disputes respecting property between man and man, much less ought the state governments to be trusted with the power of legislation.
In the end, federal courts have usurped the power to overrule state legislatures in the most trivial matters.
Even John Marshall—the most dangerous enemy the federal principle had in the early days of the republic—ruled time after time in favor of states’ rights (e.g., in Barron v. Baltimore), and, in McCulloch v. Maryland, he declared that “no political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.” Nonetheless, it was Marshall him-self who took the first steps on the Supreme Court’s long march to judicial tyranny.
As Hamilton must have foreseen, impeachment turned out to be an unwieldy tool. In 1820, Thomas Jefferson, who had feared the Court from the beginning and had done his best to impeach a justice, described the federal judiciary as
the subtle core of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone.
The problem, as Jefferson saw it, was that the Constitution, while intending to set up three equal branches, had given the judicial branch “the right to prescribe rules for the government of the others,” and—to compound the felony—this power had been given to the unelected branch. Impeachment, he commented, “is not even a scarecrow,” and the Constitution was becoming “a mere thing of wax in the hands of the judiciary.”
Nonetheless, for all the growth in the power of the national judiciary, there were presidents, such as Jackson and Lincoln, who stood up to the Supreme Court when it got in the way of their ambitions—oppressing, in the former case, the Cherokee and, in the latter, the South. By the middle of the 20th century, however, an equally strong president, Franklin Roosevelt, had to back down from a contest with the Court. Such contests between the branches—including the Watergate episode of the 1970’s—are all too rare, and the Supreme Court has been able to increase its powers steadily by cooperating, rather than fighting, with Congress, and, by the 1960’s, the Court was able to intrude into every nook and cranny of American life. The device used in recent times has been a selective reinterpretation of the 14th Amendment (selective, because the Incorporation Doctrine is hardly ever applied to the Second Amendment), but, on other occasions, the Commerce Clause has provided the justification.
Thus, here we are, 200 years after Marshall’s devious decision in Marbury v. Madison, in which he gave Jefferson what he wanted but at the expense of assuming the power to decide the question. We are now in the unenviable position of being the only country in the civilized world that entrusts the most momentous decisions to judges, who are appointed for life and immune from the concerns of ordinary citizens, and allows nine men and women to make up the law as they go along and to demand compliance with decisions that are clear violations of the Constitution. Pragmatists in search of a solution to affirmative action or intrusive hate-speech laws simply shrug their shoulders. Times have changed, and we have to deal with the reality.
The reality, however, is that the entire American order rests on the great compromises made at the Constitutional Convention of 1789. The American system, the American way of life, American success all go back to the federal principle that was seen by the Framers as the only escape from the historical fact that all large states, if they succeed, turn into empires that feed on the liberties of their citizens. Unlike the division of government powers into three branches or the important freedoms of speech, religion, and due process guaranteed by the Bill of Rights, federalism is something more than a desirable feature of our system; it is the principle that gives legitimacy to the entire system.
In a monarchy, legitimacy is based on the crown and on the lawful succession of monarchs; in a republican aristocracy (such as Venice or the Roman republic), legitimacy resides in the institutions (such as the Senate) that frame consensus and make decisions; in a party state like the Soviet Union, legitimacy depends on the party and its ideology. To undermine the federal principle, as the liberals on the Court and civil-libertarian lawyers have done, is to attack the legitimacy of the American system at its heart.
The significance of legitimacy is not well appreciated these days. A legitimate government rules according to the laws and customs of the people, who may not always like the decisions made by this king or that president but who acquiesce because they accept the authority even of a ruler they detest. Pro-life Christians in Europe, who accept the legitimacy of the governments of Germany or France, do not like the abortion laws (rather strict in comparison with our own) passed by democratically elected governments, but they do not feel themselves engaged in a moral war. Some Americans, however, realizing that abortion-on-demand was imposed by a Court that circumvented our democratic process, have begun to question the legitimacy of the regime. Whether they are right to do so is a question for debate, but what cannot be denied is that the only alternative to legitimacy—and, in America, legitimacy includes the rights of the states to pass their own homicide laws—is arbitrary rule.
George III never dreamed of having the arbitrary power of these nine senior citizens in black robes, and the long road back to responsible republican government runs right through Supreme Court justices’ unilateral decision to make them-selves the unchallenged rulers over the lives of our people.