Posted on 12/20/2010 12:23:46 PM PST by Publius
It is the lack of accountability of the Supreme Court that irks Brutus, and the fact that it is supreme over all branches of government.
1 I said in my last number that the Supreme Court under this Constitution would be exalted above all other power in the government and subject to no control.
2 The business of this paper will be to illustrate this and to show the danger that will result from it.
3 I question whether the world ever saw in any period of it a court of justice invested with such immense powers and yet placed in a situation so little responsible.
4 Certain it is that in England and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.
5 The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the House of Lords, and their power is by no means so extensive as that of the proposed Supreme Court of the Union.
6 I believe they in no instance assume the authority to set aside an act of Parliament under the idea that it is inconsistent with their Constitution.
7 They consider themselves bound to decide according to the existing laws of the land and never undertake to control them by adjudging that they are inconsistent with the Constitution, much less are they vested with the power of giving an equitable construction to the Constitution.
8 The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them.
9 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.
10 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.
11 I do not object to the judges holding their commissions during good behavior.
12 I suppose it a proper provision provided they were made properly responsible.
13 But I say this system has followed the English government in this: while it has departed from almost every other principle of their jurisprudence under the idea of rendering the judges independent, which in the British Constitution means no more than that they hold their places during good behavior and have fixed salaries; they have made the judges independent in the fullest sense of the word.
14 There is no power above them to control any of their decisions.
15 There is no authority that can remove them, and they cannot be controlled by the laws of the Legislature.
16 In short, they are independent of the people, of the Legislature, and of every power under heaven.
17 Men placed in this situation will generally soon feel themselves independent of heaven itself.
18 Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark.
19 Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear that the reasons in favor of this establishment of the judges in England do by no means apply to this country.
20 The great reason assigned why the judges in Britain ought to be commissioned during good behavior is this: that they may be placed in a situation, not to be influenced by the Crown, to give such decisions as would tend to increase its powers and prerogatives.
21 While the judges held their places at the will and pleasure of the King, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence.
22 If the Crown wished to carry a favorite point to accomplish which the aid of the courts of law was necessary, the pleasure of the King would be signified to the judges.
23 And it required the spirit of a martyr for the judges to determine contrary to the King’s will.
24 They were absolutely dependent upon him both for their offices and living.
25 The King, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods or even for life.
26 Hence the English nation gained a great point in favor of liberty.
27 When they obtained the appointment of the judges during good behavior, they got from the Crown a concession which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people.
28 But these reasons do not apply to this country; we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children.
29 The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America.
30 But much less can it be shown that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.
31 I have said that the judges under this system will be independent in the strict sense of the word.
32 To prove this I will show that there is no power above them that can control their decisions or correct their errors.
33 There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the Legislature.
34 First: There is no power above them that can correct their errors or control their decisions.
35 The adjudications of this Court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.
36 In this respect it differs from the courts in England, for there the House of Lords is the highest court to whom appeals in error are carried from the highest of the courts of law.
37 Second: They cannot be removed from office or suffer a diminution of their salaries for any error in judgement or want of capacity.
38 It is expressly declared by the Constitution, “That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”
39 The only clause in the Constitution which provides for the removal of the judges from office is that which declares that “the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”
40 By this paragraph, civil officers, in which the judges are included, are removable only for crimes.
41 Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors.
42 Errors in judgement or want of capacity to discharge the duties of the office can never be supposed to be included in these words: high crimes and misdemeanors>/i<.
43 A man may mistake a case in giving judgment or manifest that he is incompetent to the discharge of the duties of a judge and yet give no evidence of corruption or want of integrity.
44 To support the charge, it will be necessary to give in evidence some facts that will show that the judges committed the error from wicked and corrupt motives.
45 Third: The power of this Court is in many cases superior to that of the Legislature.
46 I have showed in a former paper that this Court will be authorised to decide upon the meaning of the Constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.
47 In the exercise of this power they will not be subordinate to, but above, the Legislature.
48 For all the departments of this government will receive their powers, so far as they are expressed in the Constitution, from the people immediately, who are the source of power.
49 The Legislature can only exercise such powers as are given them by the Constitution; they cannot assume any of the rights annexed to the Judicial for this plain reason: that the same authority which vested the Legislature with their powers, vested the Judicial with theirs; both are derived from the same source, both therefore are equally valid, and the Judicial hold their powers independently of the Legislature, as the Legislature do of the Judicial.
50 The Supreme Court then have a right, independent of the Legislature, to give a construction to the Constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.
51 If, therefore, the Legislature pass any laws inconsistent with the sense the judges put upon the Constitution, they will declare it void, and therefore in this respect their power is superior to that of the Legislature.
52 In England the judges are not only subject to have their decisions set aside by the House of Lords for error, but in cases where they give an explanation to the laws or Constitution of the country contrary to the sense of the Parliament, though the Parliament will not set aside the judgement of the court, yet they have authority by a new law to explain a former one, and by this means to prevent a reception of such decisions.
53 But no such power is in the Legislature.
54 The judges are supreme, and no law explanatory of the Constitution will be binding on them.
55 From the preceding remarks which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.
56 I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments and to melt down the states into one entire government for every purpose as well internal and local, as external and national.
57 In this opinion the [opponents] of the system have generally agreed, and this has been uniformly denied by its advocates in public.
58 Some individuals indeed among them will confess that it has this tendency and scruple not to say it is what they wish, and I will venture to predict, without the spirit of prophecy, that if it is adopted without amendments or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan will employ the same to persuade the people that it will be for their good to abolish the state governments as useless and burdensome.
59 Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the Judicial.
60 They will be able to extend the limits of the general government gradually and by insensible degrees, and to accommodate themselves to the temper of the people.
61 Their decisions on the meaning of the Constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.
62 These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them.
63 In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion.
64 The people will be told that their state officers and state legislatures are a burden and expense without affording any solid advantage, for that all the laws passed by them might be equally well made by the General Legislature.
65 If to those who will be interested in the change be added those who will be under their influence, and such who will submit to almost any change of government which they can be persuaded to believe will ease them of taxes, it is easy to see the party who will favor the abolition of the state governments would be far from being inconsiderable.
66 In this situation, the General Legislature might pass one law after another extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the Judicial to whom the Constitution has committed the power of explaining the Constitution.
67 If the states remonstrated, the constitutional mode of deciding upon the validity of the law is with the Supreme Court, and neither people, nor state legislatures, nor the General Legislature can remove them or reverse their decrees.
68 Had the construction of the Constitution been left with the Legislature, they would have explained it at their peril; if they exceed their powers or sought to find in the spirit of the Constitution more than was expressed in the letter, the people from whom they derived their power could remove them and do themselves right, and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature.
69 A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice, but in order to enable them to do this with the greater facility, those whom the people choose at stated periods should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil, but when this power is lodged in the hands of men independent of the people and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm>/i<.
Brutus’ Critique
If Brutus were Robert Yates of New York, who was stepping forward to protect what he felt was an imperiled state government structure, the criticisms made in this essay should be judged with an eye to the source. Yates, an adherent of George Clinton’s anti-Federalist effort, would run against his former leader at the behest of the Federalist Party itself and be defeated for the gubernatorial seat in 1789. At this point he had already been a member of the New York state Supreme Court for eleven years. Two years after the penning of this essay he was to be chosen its Chief Justice.
The reader has heard already of his reservations concerning the power granted to the federal Supreme Court under the auspices of the proposed Constitution. It is, he states, unprecedented in the known history of the time (3), although his standard for comparison is the sitting courts within the British government and not, for example, those of ancient Athens. The issue, to Brutus, is clearly one of accountability, which the British system has in the House of Lords, but to the Lords’ counterpart, the Senate, will be denied.
Someone must be the body of final resort, and if it is not to be the King, then it must reside somewhere else, but where? If it is to be the Supreme Court, then how will this final authority be brought under control of the ultimate authority, that of the people? Not, apparently, from the proposed structure of the new government.
15 There is no authority that can remove them, and they cannot be controlled by the laws of the Legislature.
16 In short, they are independent of the people, of the Legislature, and of every power under heaven.
Such a thing is the case in Great Britain as a guard against the power of the Crown (21). But there is no king in the United States, and so the independence of the Supreme Court takes on another aspect, which strikes Brutus as beyond accountability. He cites four reasons.
34 First: There is no power above them that can correct their errors or control their decisions.
That is, in fact, the case, as the well-known formulation “no appeal save for to God” indicates. Placing the power of review in the hands of the Senate, the counterpart to the House of Lords, will clearly violate the principle of separation of powers. But no review at all? Brutus finds in this a potential for abuse that is, given the perspective of two centuries of history, well-founded.
Second, the members of the Court cannot be removed for incompetence. Although the membership of the Supreme Court is subject to criticism under the standards of “high crimes and misdemeanors” to which all of the members of the federal government are subjected, there is no provision for removal of justices who exhibit “errors in judgment or want of capacity to discharge the duties of the office” (42).
Third, the Court is empowered to decide on what the Constitution actually mandates, and not entirely according to the strict words therein.
46 I have showed in a former paper that this Court will be authorised to decide upon the meaning of the Constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.
This constitutes a power over the Legislature itself (47) which is not subject to any contrary review (53). Here Brutus has overlooked the issue of jurisdiction. For those matters of original jurisdiction under Article III, the Supreme Court has full control, but in matters of appellate jurisdiction, Congress has the right to define where such jurisdiction ends. It is, to be sure, an imperfect limitation that is seldom employed, but it is there in the original draft of the Constitution.
Fourth, the danger, according to Brutus, is that a Supreme Court so inclined will increase the overall powers of the federal government to the disadvantage of the states and eventually to their demise (59). Through the principle of precedent, cases involving individual disputants, which are little publicized, may in time provide the Supreme Court with a means of solidifying an expansion of power before it is apparent to the people (60). Worse, this power provides the Supreme Court with a means of bribing the people who do know about such cases.
65 If to those who will be interested in the change be added those who will be under their influence, and such who will submit to almost any change of government which they can be persuaded to believe will ease them of taxes, it is easy to see the party who will favor the abolition of the state governments would be far from being inconsiderable.
What would save the country from such a potential hazard would be the tendency of the federal and the state governments not to function as rivals for the tax money of the citizen but to act as co-conspirators. It is difficult to fault Brutus for this deficiency of cynicism.
But Brutus clearly foresees the difficulties inherent in a non-elective office that is granted for life and is essentially unaccountable to the voters. It might, were the cause sufficient, result in violence as the only resort.
69 A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice… if they [the elected officials] determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil, but when this power is lodged in the hands of men independent of the people and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.
It is no wild imagining, coming as it does from a sitting member of the Supreme Court of the state of New York. It is, on the contrary, a clear appreciation of the potential for abuse from a Court willing to explore the boundaries of the envelope of power that will fall short of the dissolution of the very underlying government. These would, in time, be stretched to limits that would have shocked even Brutus despite his foresight.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
The answer isn't to check some branch against the judiciary. The answer is to expressly delegate federal powers, in a truly federal (not national) system.
You can't be federal and national at the same time. And you can't have limited powers AND implied powers, most especially when you have an unaccountable judiciary.
Not quite accurate, technically speaking.
Congress has the power to impeach them and remove them from office. Although it's hardly ever been used. There is no appeal from impeachment.
Congress also has the power to determine jurisdiction of the courts, which has been used only rarely and then not always wisely. There is also some ambiguity about what exactly this power means.
Any true check on national power has to come from outside the national system, which, of course is impossible.
Hence, abolish national system.
ping for later read
what it comes down to is that WE THE PEOPLE must take control and keep all branches in line... when we don’t we get the supreme shaft...
teeman
Impossible. So much of the damage is done before we're born. We have no authority to overthrow it. Old precedents live on. We the people have no power whatsoever to keep the judiciary in line.
In Federalist #39, Madison parsed those aspects of the system that were federal versus those that were national. I take it you disagree with his paper.
i didn’t say it would be easy.... but it is not impossible...
teeman
I think his ideas have been utterly disproved by 200 years of practice.
This is quite true and has proved to be a problem. It wasn’t supposed to be as such though. Under Madison’s original arguments in the Constitutional convention, the judiciary needed to be an independent branch. I think his arguments still hold. That is the USSC should be independent. The problem though is that the USSC has taken upon itself to make law as opposed to negate law. The original arguments of Madison were consistent, the Bill or Rights made it less so, the subsequent amendments made it even more inconsistent and activist judges use that inconsistency for their own purposes.
Case in point, California’s gay marriage law. Under the original constitution and per Madison’s arguments, there would have been no federal case. It would not have fallen under Federal jurisdiction. However the due process clause extended the equal protection clause of the 14th Amendment to the states. The equal protection clause implies (to some) that making a discrimination between the legislative definition of marriage and other definitions is prohibited. The final stroke is judges who decide to extend legislation to areas it was not intended rather than negate it. So a humble judge who thought that California’s law was unconstitutional would have negated California’s marriage law. Instead we have judges like Breyer who say, "you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."
So all that to say, the problem we have today is not necessarily judicial independence. The problem is judges who chose not to understand the premise of the constitution is that the branches check each other and where they don’t check each other, they balance each other. Brutus is arguing only one side, that there is insufficient balance once the judges are appointed. History has proven he is correct.
56 I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments and to melt down the states into one entire government for every purpose as well internal and local, as external and national.Brutus is correct. National supremacy was Madison’s stated purpose at the constitutional convention. Madison – "the highest prerogative of supremacy is proposed to be vested in the National Govt." Madison’s argument that "states rights" would only mean as much as the National Government said they would mean has proven correct.
And with that out of my system, it’s on to the . . . .
I think an amendment to the constitution is required. Congress or the states are insufficient here, I think. In the absence of law there is liberty. We are free to do as we can. Laws only serve to limit our options. Some limits are necessary and generally agreed upon. Where they are not generally agreed upon, there should be no law. At a minimum the constitution should be amended such that the USSC can only nullify laws rather than extend them.
I’ve toyed with this one. Two justices elected by an electoral college, every two years for a term of eight years with the president appointing the odd member above eight members make sense to me. That, by itself, would make the judges accountable but if they were to extend law rather than negate it, as the branch of last resort, they would have more power than the legislature. That would not be good. No set of words is a guard against tyranny.
Great post. OUTSTANDING discussion!
BUMP-TO-THE-TOP!
Please be kind enough to show me in the Constitution, not some court decision but the Constitution itself, where anything the judicial branch does in any way binds either of the other two co-equal branches of government.
There is a very good reason why the founders neglected to give the Judicial branch ANY enforcement capabilities!
The problem is that the court has usurped powers definitely NOT granted them by the Constitution and, thus far, few have been willing to challenge them on it!
That’s the beauty of Article 3, if you were a big government Federalist. It doesn’t explicitly describe the powers of the judicial branch. But it is inferred indirectly, by the powers granted. Hamilton acknowledged as much in Federalist ...was it 82? Brutus understood it the same way. And then Hamilton and Washington proved it in the first days in operation. Marshall affirmed all of it later. These were all framers. It’s history now.
I beg to differ! The powers of the Judicial branch are explicitly laid out in the Constitution! (see below
Article III
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Sad to see you devolve into vapid cut and paste mode so immediately. Your post is utterly meaningless.
You said that the Constitution does not explicitly describe the powers of the Judicial branch. I disagreed and showed you EXACTLY where that was done.
Please explain how that is a “vapid cut and paste”?
My post may be “meaningless” to you but I doubt that many other will find it so.
Among the British outrages listed in our Declaration was total monarchical control of the colonial judges. They were accountable to George III and not to the people.
Samuel Adams was among the first to point out their abuses and noted that their service was not limited to good behavior, meaning they could, and did serve even if they usurped the rights of colonial Englishmen.
Both complaints were addressed in our Constitution. Abuse of the Constitution they swore to protect is grounds for impeachment and removal. Congress in its capacity as closest to the people and states may limit the jurisdiction of the courts.
For instance, the Congress of the United States in a concurrent resolution could deny the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion. Contrary to popular baloney, the Scotus is not supreme over the other branches. All it takes is a virtuous people sending virtuous fellow citizens to Congress and the Presidency.
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