One of the reasons we broke from Great Britain is to get away from monarchs.
Has the Supreme Court become a neo-monarchy of nine kings and queens?
To help us figure this out, the late eighteenth-century Federalist essays were written to convince New York skeptics of the Constitution to ratify it, but federalists elsewhere across the country used the essays to their benefit. Each one is numbered.
How should the Supreme Court of the United States (SCOTUS) and the will of the people interact?
The judiciary is – or should be – the weakest branch
A little humility is needed from the neo-monarchs called judges.
The SCOTUS is mentioned in Article Three of the Constitution – not Article One (the legislative branch) or Article Two (the executive branch).
Thus, from the order of the Articles and their content, the court comes last. The legislative branch comes first, and its agents are elected by the people.
Madison or Hamilton reminds us in Federalist 51 that the SCOTUS is constitutionally limited by the other branches:
Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.
In other words, we have checks and balances among the “departments,” or branches.
In Federalist 78, Hamilton says that the executive can nominate, distribute honors, and hold the sword. The legislative branch controls the purse and prescribes the rules by which the duties and rights of citizens are to be regulated.
In contrast, the judiciary has none of these powers. Hamilton writes: “It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”
In the same passage he reiterates that the judiciary cannot limit the people’s liberty:
[The judiciary] can never attack with success either of the other two [branches]; 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[.]
The judicial branch is the weakest of the three branches, but critics of the Constitution saw an obvious flaw in the checks and balances.
However, is Hamilton right that the liberty of the people can never be endangered by the court?
If the court can declare an act of Congress void, doesn’t that put the court in a position of power over Congress that it shouldn’t have?
Hamilton lays out the concern in Federalist 78:
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.
The objection is obvious – a court annulling an act of the legislative branch can become abusive.
How the problem works out in today’s world
By the Founders’ standards, judges today have sometimes lurched over to the legislative side, in Roe v. Wade (1973), for example, which dealt with abortion. Justice Blackmun discusses, after deficient research and dependence on tendentious scholarship, such complicated issues as when viability begins and the psychological and social health of the mother.
But where does the Constitution talk of such matters? How can a court direct the legislatures about them? It seems that the SCOTUS is writing laws and imposing its own agenda on the Constitution, since the Constitution says nothing about abortion or reproduction.
Clearly the SCOTUS overreached and should have left the issue to the states and their legislatures and the elected representatives, who, after all, are closer to the people than unelected judges are.
The judges’ attitude adjustment
So how do we curtail the concentration of power in the SCOTUS and its encroachment on the legislative branch?
According to Federalist 47, which lays out the interrelations of the three branches of government, the judiciary does not have executive or legislative power: “The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils.”
The SCOTUS has no executive or legislative authority – take note, SCOTUS. You are not legislators.
Hamilton says in Federalist 78 that the court must interpret the Constitution, but in what spirit? True, the judiciary stands between the people and the law passed by the legislative branch.
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.
But this does not mean that the judiciary should see itself as superior to the legislative.
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. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
As I read the Federalist essays, Publius (a pseudonym) envisions the judges adhering strictly and purely to the Constitution, without reading their own agenda into it. They must ascertain its meaning, not impose their own postmodern, anything-goes interpretation and politics on it from the outside.
And to ascertain its meaning, judges must take the words as written in their historical context. If the Constitution does not clearly cover a current issue, then maybe – just maybe – the SCOTUS should leave it to the legislatures to decide.
Either way, the people come first. And their will or intention is expressed in elections.
The unspoken assumption here is that the SCOTUS justices must show humility, out of good character, before the checks and balances and the Constitution, laying aside their own political agenda.
Their role and powers are spelled out in Article Three, not One or Two. They are supposed to be the weakest branch.
I repeat: The intention of the people, expressed in their electing agents or representatives, comes first.
The constitutional solution is clear
In Federalist 66 Hamilton says that the president nominates and appoints, but not without senate approval; the senate can even defeat the executive’s nominee and make him choose another.
It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose, they can only ratify or reject the choice of the President.
So, then, what is the constitutional solution to the problem of overreaching judges?
We must elect the right executive and senators who reflect our values. Then the executive will nominate judges who share our values and have a certain humility before the Constitution and the intention of the people.
And the Senate will confirm the nominees.
The election solution is slow, but we conservatives are constitutionalists; we respect the Constitution.
Patience is a virtue, and the people’s knowledgeable vote is power.
It’s about people power in the Federalist essays and the Constitution, not the power of any neo-monarchs.
Live as free people.
This article appeared on American Thinker on Nov. 6, 2015. It has been revised and corrected here.
Nov. 18, 2015
Monarch literally means “sole ruler,” yet there are nine members on the SCOTUS. But the point has been made.