Judge Robert Yates, aka Brutus, warned of the problems of a Supreme Court acting without checks and balances in 1787, in the Anti-Federalist Papers.
Of all the issues facing us today, the one of overriding importance is who will replace Justice Anthony Kennedy on the Supreme Court. It is a lit match atop a dry stack of timber. It should not be this way.
It is this way because, beginning a century ago, progressives on the Supreme Court began enacting their own policy preferences, effectively amending our Constitution and enacting laws by judicial fiat. They did so — and continue to do so — without check or balance, enacting fundamental changes to our nation. It should not be this way.
I have enormous respect for our Founders. By and large, they crafted a Constitution that would last the ages while protecting, to the maximum extent possible, our natural rights to life, liberty and property. They made but two glaring errors. The first was to fail to definitively deal with the issue of slavery, a ticking time bomb that exploded in 1861. The second glaring error was that they provided no check and balance upon the powers of the judicial branch in Article III of the Constitution. That slowly ticking time bomb, small in 1787, has arguably already exploded in this country, if in slow motion.
Other than the judiciary and Article III, every single one of our rights, and virtually every single sentence and clause of our Constitution came with a very clear historical track record, either in centuries of English history or in the then hundred and fifty years of our own American colonial history. That history informed our Founders of all of the traps. Two hundred years ago the King did “x”, thus threatening our right to (fill in the blank), thus we need to include clause “y” in our Constitution.
The one place where our Founders innovated without history as their guide was in crafting Article III. The English legal system was different in its powers and in its limitations from the one our Founders envisioned.
In 1788, when ratification of the Constitution was being debated, Alexander Hamilton claimed in Federalist No. 78 that the Judiciary would be the “least dangerous branch of government.” He described it as “feeble,” lacking the ability to enforce its will upon the other branches of government. “Yes” he said, agreeing with the proposition that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” He nonetheless thought that, by the simple expedient of placing all legislative power in the hands of Congress and all right to amend the Constitution in the hands of the people, that meant that the Supreme Court would never exercise those powers. What a fool.
Interestingly enough, it was the man whom he was debating in the newspapers, Judge Robert Yates, writing under the nom de guerre of Brutus, who saw with complete clarity the problems with Article III. In Anti-Federalist 78-79, he wrote:
The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.
In a similar vein, when this problem was later pointed out by Judge Spencer Roane in a letter of 1819 to Thomas Jefferson, Jefferson first framed the danger of the problem as having created a “suicidal” conflict, but then blithely dismissed it upon grounds similar to Hamilton:
In denying the right they usurp of exclusively explaining the Constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the right of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our Constitution a complete felo de se [suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe the rules for government of the others, and that one too, which is unelected by, and independent of this nation. . . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.
Our Founders failed in crafting Article III. It, along with the regulatory bureaucracy that now sits with co-legislative authority with Congress, are the two greatest threats to our nation. Both must be dealt with if we are to survive as a Constitutional republic for another two and a half centuries.