Werrell: Judicial Power Threatens American Federalism and Republican Liberty


Have the Anti-Federalists been vindicated?  To begin my essay, I will answer the question that is the title in the simplest way possible.


Over the course of the American Experiment, tempo slow at first, and in ever accelerating fashion – with the crescendo being reached in Thursday and Friday’s Supreme Court rulings on Obamacare and Marriage – the Anti-Federalists, specifically Brutus, have been vindicated.

The Constitution of the United States, as written – along with the Bill of Rights and subsequent Amendments – created conditions that resulted in overwhelming centralization of power in the Federal Government, with a Supreme Court acting as Legislatures, and a generalized usurpation of State Governments.

(Note: I will not be giving a prescription for addressing these usurpations and lawlessness by our Federal Officials, seeing as I can hardly afford the legal team necessary to keep myself a free man. The purpose of this essay is to expose and corroborate the sage wisdom of the writings of the largely marginalized Anti-Federalists alone.)

The fear of the Anti-Federalists, was that the Constitution, as written, was a danger to Liberty. The bulk of this concern centered on the powers of the Executive branch, and the Presidency itself, and understandably so. One must recall that at the time, the office of the President was a novelty, an experiment with no precedent – so fears of the office abounded. Having just suffered under a tyrannical executive, King George, the Federalists and the Anti-Federalists alike were determined to meet Executive tyranny head on.

Still, some Anti-Federalists feared the election of the President would effectively be electing a King, which would devolve into a messy and potentially bloody affair, ultimately resulting in the overthrow of the republican form of government. Others were wary of the effect that the existence of legislative powers vested in the office of the President would have; those powers – specifically the veto- vested for the sake of checks and balances would cause chaos.

One could argue their enumerated fears over the Presidency have been largely errant… the true danger of the Presidency lies in willful defiance by those elected to the office of the bounds of its power (and for some, the existence of a perpetual standing army). So on that front – fears on the Presidency – the Anti-Federalists were largely incorrect. They were fearful of the right office, but for the wrong reasons.

Where the Anti-Federalists, specifically Brutus, proved to be spot on were on the dangers to the sovereignty and power of State governments from the Supreme Court as constructed in the Constitution.

Brutus, take it away:

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accomodate themselves to the temper of the people. 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. 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.”

Brutus perfectly described the general trend of the Supreme Court over the duration of its existence. Beginning with Marbury v. Madison in 1803, the Supreme Court not only established the precedent taught in Constitutional Law, the power of Judicial Review, but the more insidious and unspoken precedent of setting and expanding the boundaries of its own power.

Without review of Judicial Review, the only means by which the People – via Congress or the States – can overturn an errant Supreme Court decision, or an expansion of their own power, is through the Amendment process. It hardly takes a Ph.D. Political Scientist to understand that the two forces at play: 1) the Supreme Court’s gradual accumulation of power would happen alongside the second and, 2) the growth of the populace and number of States, which result in making the consensus needed to amend the Constitution and reign in the Supreme Court more difficult over time.

While not directly related, the simultaneity of these two phenomena create the perfect storm for the self-perpetuating cycle of ever-increasing tyranny by the Supreme Court.

As Brutus asked,

“When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the Constitution expressly against it? And they are authorized to construe its meaning, and are not under any control?”

The answer the question is simply, “yes.” There is no mechanism in the Constitution by which to reverse Supreme Court precedent except by Amendment, which will ultimately result in the issue coming back before the very Supreme Court that created the precedent, and expanded its own power.

In response to the fears over the Supreme Court, Alexander Hamilton asserted that because the Supreme Court was weak relative to the other branches of the central government, the dangers of that institution were thus minimal:

“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; 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; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”

One can only read those words now and smirk. For in the last two major Supreme Court decisions, the court did just that. In King v. Burwell, the Supreme Court decided that their duty was to first understand the intent of the law, then understand the impact of the law as written, then rule in such a manner to correct the inconsistency between the writing and the effect, correcting an error in the legislation – an irrefutable role of the central legislature ALONE.

And by what means exactly do we have to correct not only the errant ruling on the patently obvious wording of the law, but the precedent of Supreme Court legislation hereby reinforced, Mr. Hamilton?

(Thank goodness you are being removed from our currency, you big-government statist.)

But the greater danger of the Supreme Court is their general abolition of the power and sovereignty of the States. For in the absence of concrete bounds circumscribing the powers of the Supreme Court (and thus the central government), the States are the only remaining bulwark for liberty.

Once again, Brutus expresses this fear more eloquently than I am capable:

“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.”

As was made painfully obvious in Obergefell v. Hodges, the Supreme Court ruling sets the precedent that regardless of the democratic processes, neither the Constitutions, nor popular will in the States, can override the will of Supreme Court, if the Supreme Court chooses to take on the role of Legislature – central or State.

(Now to be totally fair, neither the Federalists nor the Anti-Federalists could have predicted the wording of, nor the application of the 14th Amendment, (alongside the 17th Amendment) which as interpreted, effectively relegates the State government to the role of tax-collector and criminal arbitrator – NOT a manifestation of popular sovereignty.)

The Anti-Federalists were correctly weary of the potential dangers of replacing the Articles of Confederation with the more powerful and centralized Constitution. Their fears of tyranny and evisceration of Liberty have been correct, though most incorrectly predicted the means by which it would happen – except for Brutus.

His concern over the vague limits placed around the powers of the Supreme Court leading to a slow, gradual accumulation of power, compounded by the absence of a direct means to react to their actions, prove to be frighteningly accurate in this modern era.

The fears of fast-paced hard tyranny by the Executive were misplaced, it was the slow creep of ever-growing soft tyranny by the Judicial that would prove to be the undoing of our liberties, and thus the Constitution.

Reading Brutus today makes him seem almost prescient, though at the time he played the role of Cassandra in Greek Mythology – granted the gift of foresight, but on the condition everyone would think he was crazy.

Let’s hope that the modern day Brutii, those who acknowledge we have realized Brutus’s worst fears and offer remedies, are not met with the same response as Cassandra. For unless we respond in meaningful and forceful ways to this tyranny by the Judicial, the Republic will remain lost… forever.

Zach Werrell is the former campaign manager for Dave Brat for Congress.

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