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December 19, 2006
Anti-Federalist Musings
In the hustle and bustle of the Christmas season leisure reading is often the first casualty. Luckily this year I have had time to revisit that demon of yore, the anti-federalists, and again realize Brutus and company were not the parochial alarmists as so often depicted. Robert Yates, delegate to the Convention from New York, is probably the best known of the anti-federalist. Although he left the Convention early and thus was not a signer of the Constitution, he would later accept its legitimacy - if due in part to his gubnertorial campaign of 1795.
One of Yates' primary concerns was a federal judiciary. Contra Hamilton's reassurances otherwise (in Federalist 78-82), Yates opined:
"They [the Supreme Court] will give the sense of every article of 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. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal" (Yates (Brutus), Essay No. 11, New York Journal, March 20, 1788).
The prophet Isaiah has nothing on Yates. For a nice dose of ironic Christmas cheer, I would suggest reading the anti-federalist Essays 9-13 addressing their concern of a federal judiciary and then Justice Breyer's An Active Liberty.
Posted by Seth Zirkle at December 19, 2006 11:08 AM
And what by what mechanism allowed by Reason is it possible to appeal to a court higher than a Supreme Court? And, if we shall not have a Supreme Court, who gets the final say on the interpretation of law? State legislators? Congress? American republicanism is founded on the notion that individual liberty is more precious than majority rule. Thank God we have a Supreme Court which can protect individual liberty even when it is unpopular.
Posted by: Chuck at December 19, 2006 09:46 PM | permalink
Does the Constitution give the Supreme Court the final say over interpreting the law? Thomas Jefferson didn't think so:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves
Posted by: Alan K. Henderson at December 20, 2006 12:06 AM | permalink
The branches may be co-equal, but that does not mean that any power possessed by any of them is equally possessed by them all. In interpreting the Constitution, the Supreme Court can only be supreme or inferior. Unless its decisions on the meaning of the Constitution are considered binding on the other branches, the Court has no power to interpret or defend the Constitution, other than when the other branches allow it. Congress can pass laws and initiate Constitutional amendments, and the executive branch has people with guns, but all the Supreme Court can do is issue opinions and expect them to be followed. The binding power of its decisions is the only power it has.
Also, if the Supreme Court can only be supreme or inferior in interpreting the Constitution, it should remain supreme. Leaving the final decision to the Supreme Court does not guarantee a correct outcome or a good outcome, but as long as the justices are chosen for their intelligence and for knowing and understanding the law (which is, at least, more true than it is in congressional and presidential elections), keep self-imposed traditions requiring consistency and thoughtfulness, and make a point of explaining the reasoning of their decisions (requiring some kind of logic, even if it is tortured, to actually exist), the Constitution is probably safer in their hands than it is in the hands of Congressmen and Presidents. I like Thomas Jefferson, but sometimes, he got carried away.
Posted by: Karl at December 22, 2006 08:51 PM | permalink
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