Thursday, February 07, 2013

An Early Critic of Judicial Review

An Anti-Federalist, RobertYates, writing as Brutus in 1787, makes a couple of interesting points in the passage I include below. First of all, he notes, I have pointed out, that "Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning."

Again, this was deliberate: when faced with a highly contested issue where it was very hard to achieve consensus, the framers solution was generally to write the thing up so vaguely that everyone could think their interpretation might prevail. This is obviously a real problem for those insisting we look to the original intent of the framers: How can we do that when the original intent was all over the place?

The second fascinating thing in Yates is his prediction that a Supreme Court established per the U.S. Constitution would have a tendency to interpret that document so as to grant itself more power. It only took until 1803 for Yates's prediction to be vindicated.In general, whether you like the way the U.S. government developed or not, the Constitution had many, many of the results the Anti-Federalists were warning about. My feeling is that if we could transport a typical Anti-Federalist to 2013, he would look around for a couple of days, and then proclaim, "I told you so!"

Enough, though, and on to Yates:
That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations. lst. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shown to be unlimited by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shown, leaves the legislature at liberty, to do everything, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it-though I believe this is not the fact, Yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring that in construing any of the articles conveying power, the spirit, intent and design of the clause should be attended to, as welt as the words in their common acceptation.

This constitution gives sufficient color for adopting an equitable construction, if we consider the great end and design it professedly has in view. These appear from its preamble to be, "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and posterity." The design of this system is here expressed, and it is proper to give such a meaning to the various parts, as will best promote the accomplishment of the end; this idea suggests itself naturally upon reading the preamble, and will countenance the court in giving the several articles such a sense, as will the most effectually promote the ends the constitution had in view. How this manner of explaining the constitution will operate in practice, shall be the subject of future inquiry.

2nd. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors. The same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.


  1. Someone earlier made the point on how accurate were the predictions of the forgotten Anti-Federalists, in contrast to the Federalists that are greatly respected (because they won, not because they were right):

  2. I never understood this line of argument. What's to say that federal government wouldn't have simply assumed those same powers without SCOTUS? The courts could only have functioned as a limitation on it.


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