An Account of debates in 1787 on the writing of the US Constitution by its Advocates and Opponents

by faithgibson on June 3, 2023

in Draft

Dear Reader,

The historical material post below is particularly germane in our post-Roe world in which half the states and their mostly male legislatures are falling all over themselves to see who can pass the most draconian, regressive, and punitive anti-abortion laws.

For girls and women with untenable or abnormal pregnancies, the world is spinning out of control with no help in sights, and our already disportionately high maternal mortality rate — highest of all industrialized countries — just keeps climbing higher and higher!

This is the a direct result of the actions by the US Supreme Court. Their hubris and insular tone-deafness to the realities of the real world have brought about the very worst fears of many astute political figures during the time that Constitution was being written. Many of these newly-minted American citizens had great and apparently justified fear that the US Supreme Court as configured by the Constitution would become an autocratic and anti-democratic institution.

That has indeed happened. While Supreme Court justices are supposed to be agnostic when it comes religion and to partisan politics, the votes of the Gang of six proudly line up with their religion (Roman Catholic) and their politics (conservative and far-right Republicans).

In a historical publication by “Butus” (a literary pseudonym) he fears that a

“…. Court of Justice (is) invested with such immense powers and yet … so little responsible.

They are to give the Constitution an explanation, and … they are independent of the people, of the legislature, and of every power under heaven.

Men placed in this situation will generally soon feel themselves independent of heaven itself.

And how is this enormous power of an unelected body, appointed for life, deliberating in secret, compatible with democratic republicanism?

… 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.

Richard Henry Lee (theFederal Farmer”) warns the judges and juries have a ….

very extensive influence for preserving or destroying liberty and for changing the nature of the government.

Well, the Supreme Court has achiever what Putin so far can only dream of — to destroy the self-correcting nature of our democracy by using the democratic process to achieve undemocratic goals.

In 2021 the US Supreme Court opened the floodgates with their “Citizens United” ruling and as expected, the country is now flooded with “dark” or untraceable money from corporations and the uber wealthy that corrupts our already compromised “pay to play” electoral system.

To rub salt in the wounds, the Supreme court’s Bruen decision removed almost all restrictions on guns, while reversing Roe v Wade and paving the way for states to ban access to safe and legal abortion services.


The Great Debate: Advocates and Opponents of the American Constitution (available from The Great Courses)

This historical material is a distillation of the opinions voiced and  published as part  the general debate swirling the writing of the US Constitution during the spring and summer of 1787. Much of the information came from the 85 Federalist Papers in the public newspapers and other contemporary (1787) documents. The advocates were the Federalists and the opponents were the Anti-Federalists.

This is my personal transcription of the 11th chapter titled:

Lecture 11 ~ The Supreme Court and Judicial Review — Empire and Spartan Hegemony

by Dr. Thomas Pangle, Ph.D.
Professor of Governance,
University of Texas at Austin

In the Supreme Court and judicial review at the end of the last lecture, I suggested that Hamilton’s stress on the need for a prudent degree of trust in the virtue of which some rare individuals are capable becomes especially evident in his defense of the proposed constitutions judiciary and Supreme Court and Federalist papers 78. It follows, and here again we find that where the federalists see reasonable grounds to place the country’s trust in selected individuals of superior moral and intellectual qualities, the distrustful anti-federalists see an imprudent and dangerous opening to aristocratic subversion.

The Federal Farmer goes so far as to declare that, as he puts it in his 15th letter, we may fairly conclude we’re more in danger of sowing the seeds of arbitrary government in this department — referring to the proposed judiciary — than in any other. The anti-federalists have several different worries about the proposed national judiciary culminating the Supreme Court.

For one thing, they see the federal judiciary as we’ve seen in earlier lectures, designed to help weaken popular jury authority not least by the explicit grant of the higher courts power to review and overturn jury judgments of fact as well as law. For another thing, they see the jurisdiction of the federal courts as going far beyond what is necessary in a federal system and they fear that as a result the federal courts will totally dominate and render impotent state courts.

But the most fundamental and far reaching and far sighted complaint is about the extremely undemocratic or aristocratic power of the Supreme Court both because it is an unelected body with lifetime appointments exercising final appeal deliberating in secret and making decisions over which neither the people nor the people’s elected representatives have any say.

And still worse, on account of what we nowadays call judicial review or the judiciary ‘s power and at the summit the supreme courts power to declare null and void because unconstitutional laws that have been duly enacted by the people’s elected representatives, that it is the anti-federalist Brutus who is the first to articulate the full meaning of what we nowadays call judicial review in the American system and he does so in terms of great alarm. Brutus discovers judicial review on the basis of his analysis of the meaning of the following words of Article 3, section 2 of the proposed constitution, defining the judicial power the constitution reads as follows:

“The judicial power shall extend to all cases in law and equity arising under this constitution”

Brutus contends that to be given the power to judge constitutional cases according to equity means ,as is taught he says by great traditional authorities like Blackstone and Grocers, it means to be given the power to judge according to the spirit of the law even outside or against the letter of the law. It also means to be given the power to judge in accordance with the implicit intention of the original law giver.

Now Brutus argues {that} it follows from the fact that this power of judging according to equity as well as law is given explicitly to the federal courts and to no other part of the government, that this task is assigned to them — to the judicial branch — and to no other branch, for no other branch or institution is given explicitly this power by the wording of the proposed constitution and in particular the legislature is nowhere given such a power.

Only the judiciary has the power to judge according to the equity of the law, and the constitution and equity means the spirit and intention of the original founders. So Brutus insists that if the people adopt this constitution, he warns, they should realize that will be subordinating their own elected representatives to the judiciary, since it is the judiciary alone that is authorized explicitly to be the final interpreter of the meaning the spirit the intention of the constitution.

In Brutus’s words, in the exercise of this power, the meaning of the federal judges will not be subordinate to, but above the legislature. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights are next to the judicial for this plain reason. But the same authority which vested the legislature with their powers, vested the judicial with theirs.

The Supreme Court then has 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 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.

And then Brutus draws out, in lurid terms, what he regards as the frightening implications of this.

“I question”, he writes, “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.

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them, but the judges under this constitution will control the legislature, for the Supreme Court are authorized in the last resort to determine what is the extent of the powers of Congress.

They are to give the constitution an explanation, and there is no power above them to set aside their judgements — they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

It’s in response to this sounding of an alarm by Brutus, an alarm which Hamilton actually quotes in paraphrase in federalist paper 81, that Hamilton is impelled to defend the proposed judiciary, and in Federalist paper 78, builds his own famous, and very different case, for the reasonableness of the power of judicial review   {{end @ 7:36}}

And it is of course Hamilton’s case for judicial review, built on later by John Marshall rather than Brutus,’ which has become the canonical argument. But Hamilton is only driven or provoked to make this case for judicial review because of the challenge posed by Brutus.

So here, perhaps more than anywhere else, we see how importantly the anti-Federalists contributed to the defining and articulation of the meaning of the constitution, precisely by their heated opposition to it and the provocation that caused. {{8:12}}

Hamilton begins his defense of the proposed judicial power in paper 78 by asserting, in phrases that have become famous, that the judicial branch in his words:

“will always be the least dangerous to the political rights of the constitution because it will be leased in a capacity to annoy or injure”

And he goes on to explain the reason the judiciary, he says,

“… has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society and can take no active resolution whatever from its natural feebleness. It is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches.”

Now this claim of Hamilton’s as to the minimal danger from the judiciary is hotly disputed by the leading anti-federalists Richard Henry Lee writing as the Federal Farmer warns the judges and juries in their interpretations and in directing the execution of them have a:

very extensive influence for preserving or destroying liberty and for changing the nature of the government. Judicial power is of such a nature. But, when we have ascertained and fixed its limits with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic, that is, after all our cares we must leave a vast deal to the discretion and interpretation, to the wisdom, integrity, and politics of the judges.

When the legislature makes a bad law, or the first executive magistrate usurps upon the rights of the people, the people discover the evil much sooner than the abuses of power in the judicial department the proceedings of which are more intricate complex and out of the people’s immediate view a bad law immediately excites a general alarm a bad judicial determination though not less pernicious than its consequences is immediately felt probably by a single individual only and noticed only by his neighbors and a few spectators in the court.”

One can wonder whether Hamilton ever really faces up to this argument warning against the potential power and therefore evils of the judiciary

There’s even some reason to wonder if Hamilton is being altogether candid when he makes this initial and conspicuous claim of his as to the relative weakness and hence innocuousness of the judiciary because Hamilton makes this claim about it being the least dangerous branch before he has admitted that Brutus is essentially correct in discerning that the proposed federal judiciary is designed to have the final unappealable power to declare any law unconstitutional and thus void.

And something else indicates that Hamilton is not being entirely honest in this passage, proclaiming the weakness of the judiciary under this constitution, because in a footnote to this passage, Hamilton appeals to and quotes the authority of Montesquieu. Now in his discussion of the judiciary Montesquieu did indeed, as Hamilton quotes him here, speak of it as being so comparatively weak as to be next to nothing in power compared to the legislative and executive branches.

Fair enough, but in Montesquieu’s discussion, there is nowhere any hint of a power in the judiciary to declare laws unconstitutional. In other words, Montesquieu is thinking of a judiciary as it appears in the British constitution, which has no such power. Hamilton misleadingly cites Montesquieu as if Montesquieu were talking about a judiciary like the American, which has judicial review.

Still when Hamilton does go on to introduce, and admit and recognize, that the proposed judiciary is intended to have the power of judicial review, Hamilton repeatedly denies what he calls the imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged, Hamilton recognizes, referring of course to Brutus, that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void.

Hamilton denies that, but it’s not perfectly clear that he ever successfully refutes this conclusion which, as we’ve seen, is emphatically drawn by Brutus and at the heart of his own explanation of the judicial power. Hamilton says that the judiciary has been, in his words, “designed in order, among other things, to keep the legislators within the limits assigned to their authority”.  Does this not sound like a superior’s function? Does not an institution, which is designed to keep another institution in its place, sound like a superior controlling the other as inferior?

Can the doctrine of judicial review avoid the implication of judicial supremacy in some important degree, at least, not, to be sure, in terms of physical power —  power of the purse or the sword — but in terms of legal and moral power?

And how is this enormous power of an unelected body, appointed for life, deliberating in secret, compatible with democratic republicanism? That’s the question Brutus and the anti-federalist press. How could one escape the anti-federalist conclusion that the Supreme Court is, at least, a somewhat aristocratic institution, designed to at the very least check and limit the more democratic branches of government?

Hamilton’s response is to execute an amazing gambit — he claims to prove that judicial review is in fact a democratic principle, nn expression of the supreme power of the majority will of the people. How does he manage to make such an argument?

He begins from the premise that representative government has no legitimate authority to exceed its lawful Commission given by the people, and then he adds that in the proposed American system, the people’s Commission will be the written constitution adopted by the people as their fundamental law through the delegates they have elected in each state convention.

Therefore, any governmental action that violates the constitution will be a violation of the people’s most fundamental will constituting the political order. And so to declare laws or actions of the government null and void on the basis of their contravening the constitution is not opposing but enforcing the people’s most basic intention and will.

The argument up to this point is very powerful, but unfortunately it does not yet prove what Hamilton needs to prove because this argument does not yet prove that it is the unelected Supreme Court that has been delegated by the people to have the final say in interpreting what the people intend their constitution to mean.

But Hamilton does not take advantage of the argument Brutus had made to the effect that the wording of the proposed constitution’s grant of judicial power because of the use of the term equity itself implies that the courts are to have the final say in interpreting the constitution. Hamilton apparently does not buy such an interpretation — that so freighted a meaning was ever intended for the term equity.

In the subsequent Federalist paper 81, Hamilton goes so far as to say that, in his words,

“there is not a syllable in the constitution which directly empowers the national courts to construe the laws according to the spirit of the constitution”

And he then adds that this doctrine of judicial review is not to deduce from any circumstance peculiar to the plan of the convention. So, Hamilton wants to provide a justification that does not come from the text of the constitution or from the convention.

He wants to deduce judicial review from something more substantial and certainly more substantial than the mere meaning of this one word “equity”.  Hamilton’s argument is that judicial review is intrinsic to the very idea of a constitution that expresses the will of the people where that popular constitutional will is more authoritative than even the will of the people’s elected representative government. But to repeat the question, then becomes “why is it the courts which have the supreme and final say in interpreting what the people mean by their constitution/” {{17:43}}

And here in paper 78, Hamilton admits that one might suppose that, as he puts it, the legislative body are themselves are the constitutional judges of their own powers.

In other words, Hamilton points to the anti-federalist argument which says the part of government best suited to understand what the people mean and intend by their constitution is the part that is elected by the people — the legislature — in contrast judges as unelected, as never having to stand for election or reelection, as never having to go out and campaign and get to know the people, are not responsible to the people and are not qualified, as are the elected representatives who have to campaign for election amongst the people to know what is the people’s understanding of their constitutions meaning.

As Brutus says in his 15th and 16th essays,

“had the construction of the constitution been left with the legislature, 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,  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.

The supreme controlling power should be in the choice of the people, or else you establish an authority independent and not amenable at all, which is repugnant to the principles of a free government agreeable to these principles.

I suppose the supreme judicial ought to be liable to be called to account for any misconduct by some body of men who depend upon the people for their places”.

Now Hamilton counters this by saying the following: 19:49

“it is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.”

But why is it more rational to suppose this the reason? Hamilton proceeds to give is the following in his famous key sentence:

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.

The thing, the nature of the judicial function, which is uniquely suited to interpreting laws and therefore the constitution as fundamental law, as he puts it later in paper 81

“this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution, and as far as it is true, is equally applicable to most if not all the state governments.

There can be no objection therefore on this account to the federal judicature, which will not lie against the local judicature in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.”

So, Hamilton claims that the doctrine of judicial review applies to every republican constitutional order and in particular to all the states.

But to this argument Brutus has, of course, already protested that in none of the States,  and certainly not in New York State, is there any such doctrine of judicial review as is being proposed in the new constitution.

According to Hamilton, Brutus, in effect, asks if Hamilton is right about this doctrine being derived from the general theory of republican constitutionalism, then how come no Republic has ever heard of this doctrine before in history including the history of the 13 states?

At the core of Hamilton’s justification for judicial review is a new claim about the nature of the judiciary — the claim that such power of judicial review is intrinsic to the function of the judiciary under a written constitution, That’s and this seems to mean that the judges are uniquely qualified to exercise such power.

“Judges alone are qualified to interpret the underlying spirit and meaning of the constitution and the original or deepest intention of its framers, and above all the deepest intention of the people, both the people who originally ratified the constitution through their delegates and the people in every subsequent generation who are continuing to accept it.”

This seems to me that the basis of the whole doctrine is the special expertise and virtue of the judges, but as the anti-federalists have stressed, this seems an aristocratic argument not a democratic argument and this aristocratic character of Hamilton’s argument becomes still more plausible when Hamilton goes on to note in paper 78 that:

“the court will sometimes have to stand in opposition not only to the will of the legislature or the agents of the people but also to the manifest will of the people themselves at times when the public or the majority is temporarily corrupted into threatening the rights of minorities or individuals against the underlying principles of their constitution “

And on such occasions, Hamilton writes:

“It is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution where legislative invasions of it had been instigated by the major voice of the community”

Hamilton thus makes clearer and clearer, as he goes along, that the federalists are indeed relying on and hoping for superior virtues in the judges both intellectual virtues of learning and the law and jurisprudence that will endow the judges with a superior capacity of insight into the full implications of what the people intended in their most solemn and fundamental civic act — the adopting and accepting of their constitution –but also moral virtues, virtues of heart are character, fortitude, as he says, that will enable the judges to assert and defend this most serious intention of the people even against what may be a current mood or passion of the people  {25:10}

As Hamilton puts it”

“There can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

Hamilton thus does conceive of the federal judiciary especially in a sector size of the power of judicial review as being a kind of needed aristocracy, but one whose special virtues are in service to the people’s most fundamental and serious will.

In Federalist paper 81, Hamilton replies to Brutus’s argument that it would be wiser, better, more legitimate, to vest the supreme interpretation of the constitution in the legislature, as the people’s elected representatives, and his reply is based on challenging the qualifications, both intellectual and moral qualification,s for such a task of elected representatives.

“The members of the legislature he writes will rarely be chosen with a view to those qualifications which fit men for the stations of judges who are to be men selected for their knowledge of the laws acquired by long and laborious study and in addition he points out that legislative bodies have as he puts it a natural propensity to party divisions and the habit he says are being continually marshalled on opposite sides will be up too apt to stifle the voice both of law and of equity if legislatures are given that final constitutional say.”

But the full scope of Hamilton’s conception of this aristocratic role of the federal courts emerges only when we see that he is quietly indicating that the intention is for the courts to protect not only the constitution but in addition rights of individuals that are not necessarily in the constitution and in addition to that general unwritten principles of justice.

Thus, Hamilton writes in paper 78 that, in his words, this independence of the judges is equally requisite to guard the constitution and the rights of individuals. It makes it clear it’s not just the constitution, it’s something beyond that, it the rights of individuals. Then he goes on to deliver the following most pregnant statement:

“…but it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens by unjust and partial laws. Here also the firmness of the judicial magistracy is a vast importance in mitigating the severity and confining the operation of such laws.

It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them, who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by their very motives of the injustice they might meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may imagine.”

Now in order to understand what Hamilton is hinting at here, getting at, we must bear in mind that he is assuming that there will be no Bill of Rights as part of the constitution. He has in mind that the courts will therefore have to exercise a rather wide discretion in applying unwritten and only implicit and traditional rules of equity and common law and perhaps even natural law and natural rights.

And this brings us to the last great bone of contention between federalists and anti-federalists, namely the anti-federalist complaint and expression of alarm, at the fact that there is no formal written bill or declaration of rights as part of the proposed constitution.  In our next and last lecture we will treat this great issue, and see how it brings into focus some of the deepest ways in which each side has contributed to our American civic heritage.



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