The founders' dilemma: when the court has the last word, who limits the court?

In the Constitutional Convention of 1787, delegates debated the merits and virtues of vesting in federal courts the awesome power of judicial review – the authority to strike down laws of Congress that they find to be unconstitutional. In the end, the Framers agreed to grant the reviewing power to the courts, but not without some careful soul-searching, for it was at that juncture in world history unique in the realms of law and political science. Alexander Hamilton wrote in Federalist No. 78 that the courts were designed to keep the legislature within constitutional limits. He observed, “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 fundamental law.” The judiciary, then, was charged with the duty of determining the meaning of the Constitution and policing its boundaries.

Although the function of the courts as described by Hamilton was clear, there were nonetheless concerns and reservations about the scope and exercise of the reviewing power. If the U.S. Supreme Court were to possess that authority to check and limit the powers of Congress and the president, who would check and limit the Court? John Dickinson of Delaware captured the dilemma: “He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.”

The troubling aspect of judicial review, as explained by members of the Convention – those who supported it and those who opposed it – was the potential for the judiciary’s abuse of power. Never mind that judicial review was a byproduct of the Court’s authority to interpret the laws. Elbridge Gerry of Massachusetts told his colleagues that, “the judiciary, by their exposition of the laws,” would have “a power of deciding on their constitutionality.” Judicial review, an organic feature of the new constitutional order, would hang like a sword above the necks of the executive and legislature, an essential tool for maintaining the enumeration of powers. As John Marshall, a delegate in the Virginia Ratifying Convention, described the checking power on Congress, “If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would declare it void.”

The faith of the Framers in the willingness, ability and integrity of the judiciary to guard the Constitution, as Marshall explained, was questioned during the ratification debates and, as readers will recall, at various controversial moments in our history – in the 1930s when President Franklin D. Roosevelt tried, unsuccessfully, to pack the Supreme Court, by those in the 1950s who opposed the Court’s desegregation rulings, and in our time, in reaction to the Court’s decision in Trump v. United States, to clothe the president with immunity from criminal prosecution. This Season of Discontent with the Court is thus not the first in American history, but it runs deep and is likely long-lasting. It will continue to inspire calls for judicial reform.

The increasing demands for Supreme Court reform hinge on the very concerns that fueled the Framers’ dilemma – abuse of power – as expressed by Dickinson and his colleague, Robert Yates, a delegate from New York who, after the Convention adjourned, took up his pen and entered the ratification debates, under the pseudonym, “Brutus,” to criticize judicial review, which he regarded as one of the Constitution’s great defects. He reminded readers that “the world” had never seen “a court of justice invested with such immense powers” as those vested in the Supreme Court. He pointed out that there would be no power to control their decisions. The justices, “are authorized” to determine the powers of Congress, and “they are to give the constitution an explanation and there is no power above them to set aside their judgment.” In such circumstances, and vested with full judicial independence, the new Justices would “feel themselves independent of Heaven itself.”

The Framers’ answer to Brutus’s fear, the specter of unconstrained judicial power, was the checking and balancing instrument of impeachment. Alexander Hamilton, in Federalist No. 81, believed that the overhanging threat of impeachment would be sufficient to deter judges from “deliberate usurpations of power.” Was Hamilton’s assumption correct? We explore next week the Framers’ discussion of judicial impeachment.

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