This is the second article in a series on “The Struggle for Ratification: Advocates and Opponents Debate Judicial Review.” You can read Part 1 HERE.

Beyond assessing the impact of judicial review on the states, Brutus proceeded to analyze its effect on the national sphere as well. Here he enunciated in very trenchant — indeed, prescient — comments the reason why the Supreme Court would come to exercise, not only judicial review but judicial supremacy.

The fundamental principle of ordered government, according to Brutus, is accountability. While separation of powers was an essential requirement of sound government, accountability, he insisted, was no less essential an ingredient.

“To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands. The legislative power should be in one body, the executive in another, and the judicial in one different from either–But still each of these bodies should be accountable for their conduct…” (Brutus 11)

“When great and extraordinary powers are vested in any  man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it…. [T]he true policy of a republican government is, to frame it in such manner, that all persons who are concerned in the government, are made accountable to some superior for their conduct in office. – This responsibility should ultimately rest with the People.’  (Brutus 12)

With regard to the legislature, Brutus explained, the elected representatives are chosen by the people at stated periods and are therefore amenable to popular control. Inferior courts are subject to the control of superior courts.

“But on this plan we at last arrive at some supreme, over whom there is no power to control but the people themselves.” (Brutus 16)

The creation of an institution, which is not accountable at all to any outside body, “is repugnant to the principles of a free government,” Brutus warned.

“The supreme court under this constitution would be exalted above all other power in the government, and subject to no control… 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.” (Brutus 16)

In his search for what might have been a suitable means of instituting accountability for the Supreme Court, Brutus refers to the precedent of the British judiciary.

“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 the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment.” (Brutus 15)

If the Framers of the Constitution followed the British precedent of making the judges independent, they should have also incorporated the British constitution “in instituting a tribunal in which their errors may be corrected.”

In Britain, the judiciary was subject to appeals to the House of Lords by means of a writ of error, and the final disposition of a case was decided by the vote of all the Lords, lay peers no less than judicial. In this comment, Brutus was referring to the fact that the judges under the British system were not only bound by the laws of Parliament but did not operate as the court of last resort.

In contrast, under the Constitution, “the judicial … 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.”

In England, judges had to be made completely independent so as to be undeterred from rendering judgment even contrary to the wishes of the Crown. There was no such necessity in the United States and the absolute independence of judges, without any accountability to any other body, was quite unwarranted.

Brutus went on to point out another crucial distinction between the British and American systems of government–the ability of Parliament to severely restrict the broader impact of an unwarranted and inappropriate judicial interpretation of the constitution–a power entirely lacking to the U.S. Congress.

“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. 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. 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 judgment 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. But no such power is in the [U.S.] legislature. The judges are supreme–and no law, explanatory of the constitution, will be binding on them.” (Brutus 15)

“…The end result was that, [t]here is no power above them to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, 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.”  (Brutus 15)

Brutus dismissed the possibility that impeachment could serve as a factor to restrain the judiciary. Errors in judgment are not included under the heading of “high crimes and misdemeanors,” he explained. Likewise, he was not prepared to put his faith in the power of Congress under Article 3 of the Constitution to define the scope of the Court’s appellate jurisdiction “with such Exceptions, and under such Regulations” as it may prescribe. To assume that Congress would “make provision against all the evils which are apprehended from this article” was to adopt faulty reasoning.

“[T]his way of answering the objection made to the power, implies an admission that the power is in itself improper without restraint, and if so, why not restrict it in the first instance….  For to answer objections made to a power given to a government, by saying it will never be exercised, is really admitting that the power ought not to be exercised, and therefore ought not to be granted.” (Brutus 15)

This court, he reminded his readers, “will be authorized to decide upon the meaning of the constitution,” on the basis of the natural meaning of the words and “also according to the spirit and intention” thereof, as conceived by the judges.  “In the exercise of this power they will not be subordinate to, but above the legislature.” His conclusion was that “when this power [of deciding the meaning of the Constitution] 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.”

In sum, what Brutus was enunciating was an entirely original explanation for judicial review, which, he claimed, would lead inexorably to judicial supremacy. The essence of republican government, he contended, was accountability. In drafting the Constitution, the Framers had been remarkably successful in instituting a system of checks and balances so that no single part of the national government was free of accountability; there is, however, one exception, the Supreme Court. The Justices were not answerable to anybody at all. They were at liberty to interpret the Constitution in any way they saw fit, and no part of the government could qualify or reject their interpretation. Since they would have the last word, it was their interpretation that would remain binding on all other sectors of the federal government.

Various theses have been offered to explain the basis of judicial review.

The first was that of Chief Justice Marshall who found it in the terms of the Constitution itself. The Supremacy Clause in Article 6 of the Constitution stipulated that only those laws which were made “pursuant” to the Constitution were valid. Others, in rejecting the textual basis of judicial review, found that it was a necessity because of the need for some institution to umpire the federal system. Still others deemed judicial review an essential appurtenance of a written constitution.  Both of the latter theses would require the court to be quite restrictive in the exercise of judicial review. And there were yet others, such as Judge Learned Hand, who claimed that judicial review had no legal basis whatsoever under the Constitution. It was required only to prevent the “collapse” of the constitutional system.

Brutus’ argument is not that the text of the Constitution mandates judicial review, or even authorizes it, but that the structure of the Constitution allows for judicial supremacy. Since there would be nothing to stop the court from declaring that a law was unconstitutional, it could, with impunity, proceed to do just that. The court, as it were, would be exercising constitutional jurisdiction by default. It was a failing of the architects of the Constitution that they had created a body, such as the Supreme Court, entirely free of any accountability.

Judicial supremacy was not dictated by the Constitution, it was permitted under the Constitution because there was no power that could prevent the institution with the last say – the Supreme Court – from telling the other branches of government what they were allowed, or not allowed, to do. In short, Brutus contended, judicial supremacy was a direct consequence of the failure of the Framers to institute some sort of checks and balances on the Supreme Court as had been instituted on all other parts of the federal government.

Brutus’ charge was clearly a severe remonstrance against the Framers of the Constitution and demanded a detailed answer if it was not to serve as a rallying point against ratification of the Constitution. If it was unduly alarmist, there was a need to demonstrate, or at least to give the appearance of demonstrating, that the fears expressed were exaggerated and unwarranted. This was Hamilton’s aim in Federalist No. #78 and the other numbers that followed.

Bob Fiedler
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