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Anti-Federalists and the Roots of Judicial Oligarchy

The start of every summer brings with it two inevitabilities: heat and a fresh batch of conservative lamentations about how yet another Republican-appointed Supreme Court justice has grown soft and squishy. Even as hands wring in frustration, if not despair, Court watchers, with the eagerness of a Vegas odds-maker, engage in divinations over which justice will author the remaining opinions. Although they rarely admit it, everyone operates out of hope that the “right” justice delivers the opinion on the crucial cases, believing that if their side writes the decision it will be correct. Even when their guesses prove right, reading those opinions often transforms those expectations into melancholia, and new dirges pour forth from conservatives’ pens. One only needs to look at the aftermath of the recent Bostock case to see this scenario in motion. To cope, commentators dream of a Court vacancy, believing that getting just one more conservative on the bench will change everything. It is a vicious, endless cycle. 

Conservatives have only themselves to blame for this predicament.  Many have yet to concede the depths to which progressives have utterly transformed the judiciary. An oligarchy of robed aristocrats now rules, replacing the stability of the rule of law with the arbitrariness of decision-by-decision and emanation-by-penumbra jurisprudence. The expansion of executive power, delegation doctrines, the lack of practical limitations upon Congressional authority, the decline of federalism, social issues like abortion, and the changing of millennia-long understanding of marriage have all received the Supreme Court’s sanction. No element of our lives remains outside of the reach of their power.

Yet despite all the evidence to the contrary, conservatives continue to tout Hamilton’s assurances that, with the right people in place, the judiciary would prove to be the “least dangerous branch” because it had neither “force nor will,” while the absence of the sword and the purse were to render the Court powerless. History, however, has not been so sanguine to Hamilton’s assurances. What makes this all the more frustrating is how, rather than push back against these aberrations, conservative groups work within the progressive paradigm of judicial supremacy. They continually fail to get the decisions they want, and the supposedly “right person” fails time and again to live up to expectations (likely because every appointment is yet another elite from another ivy-league law school). All this is compounded by the guilt and shame that comes from effectively embracing the progressive elements that have so grotesquely misshapen the Constitution.

This bleak picture of our modern constitutionalism should not surprise anyone who has read the Anti-Federalists. Their warnings on the loss of self-governance and liberty through the Constitution’s general vices—consolidation and potential oligarchy—and the vices of the judiciary in particular, should appear to modern readers, those willing to listen at any rate, as prophetic and prescient.

Self-Governance and the Issue of Scale

Anti-Federalists equated political liberty with the active participation of the citizenry. Drawing upon history and political theory, Anti-Federalists believed this relationship best existed in geographically small, sovereign republics with a socially homogenous population.  Small republics, with their modes of participation, allowed for the flourishing of republican traits—such as frugality, moderation, and vigilance—necessary to secure and maintain self-governance and liberty. By social homogeneity, Anti-Federalists meant communities bound through shared, fundamental beliefs. Brutus noted in his first essay, “[I]n a republic, the manners, sentiments, and interest of the people should be similar.” Small republics made government closer and more responsive to the people, which created a “confidence” in the people towards their rulers which emanated “from their knowing them, from their being responsible to them for their conduct, and from the power they have of displacing them when they misbehave.”

Likewise, the Federal Farmer observed that when representatives had a general “sameness, as to residence and interests” with those they represented, the potential for tyrannical government lessened and the ever-difficult process of finding and promoting the common good easier. While the clash of interests and beliefs on how to implement the common good proved inevitable—that is the nature of politics, after all—the ability to overcome those differences and to do so without grinding oppression made small republics desirable. Nor was it a mean thing that rulers shared a common fate with those they governed. They returned to live next to those they represented, living under the same laws, and suffering the same consequences as their neighbors for their decisions. With an extensive republic, rulers are isolated amongst themselves, circulating in the same social circles, rarely, if ever, experiencing the real-world consequences of their decisions.

With the dramatic increase in scale that a continental republic represented, Anti-Federalists like George Mason feared that:

The General Government being paramount to, and in every respect more powerful than, the State governments, the latter must give way to the former. Is it to be supposed that one National Government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained by history, that there never was a Government, over a very extensive country, without destroying the liberties of the people.

In other words, the Constitution’s great powers over territory as vast as the United States threatened to consolidate the states into a national government. Consolidation erased the various circumstances of population, customs, economies, and geography that characterized the states’ diversity, replacing it with what the Federal Farmer described as a “uniform system of laws” that conflicted with and proved detrimental to the “different laws, customs and opinions” of the separate states.  

History has proven most of the Anti-Federalists’ fears correct. That does not mean all is lost; not yet, at least.

With consolidation destroying the states, the diminution of republican self-government and liberty seemed all but inevitable. The active participation of citizens deemed essential for successful republics would devolve into nothing more than selecting representatives. Even this exercise seemed little more than chimerical. The large size of districts made it impractical “for a country, so large and so numerous . . . to elect a representation, that will speak their sentiments.” This scale severed the governed and governors’ relationship as neither citizen nor ruler would know one another or live together. With the central government removed from the closeness of the people, Brutus argued that republican vigilance would wither as the “people at large would know little of [government’s] proceedings, and it would be extremely difficult to change them.” As a consequence of this detachment, the people would “have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the very law they pass.”

The scale of this continental republic threatened not only republican liberty but the homogeneity necessary for self-governance. As Brutus explained:

The different parts of the union are various, and their interest, of consequence, diverse. Their manners and habits differ as much their climates and productions; and their sentiments are by no means coincident. The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor to its own interests and customs, and of consequence, a legislature . . . would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other.

Thus, as homogeneity gave way to heterogeneity, different and potentially conflicting cultures would clash. Should one gain the levers of power, nothing could stop them from carrying out their will.

Anti-Federalists and Judicial Oligarchy

Anti-Federalists feared that a distant and unresponsive legislature would destroy republican liberty, but that it would also strip citizens of the virtues necessary for self-government. These conditions played to the Constitution’s oligarchic vices. Although they admitted that oligarchy was possible in all three branches, their remarks on the judiciary bear special attention.

Many Anti-Federalists foresaw the coming of judicial supremacy. As all constitutional questions fell under the court’s domain, Brutus saw that members of the Court could “enlarge the exercise of their powers” and make it “superior” to the other branches of the governments. Nothing “provided in the constitution . . . can correct their errors, or control their adjudications. From this court there is no appeal.” The supremacy of the Supreme Court, it seems, was by design.

Nor were the states safe from this judicial supremacy; in fact, it would be the seductive instrument of their consolidation. “Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction.” As a creature of the Constitution, the Court would invariably “lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction.” By “insensible degree,” the Court would whittle away at the authority of the states, transferring their powers to the central government.  

The Court’s ability to “decide upon the meaning of the constitution . . . according to the natural and ob[vious] meaning of the words, but also according to the spirit and intention of it” made this supremacy all the more dangerous. Nothing prevented the Supreme Court, in the name of the Constitution’s spirit, from substituting its own beliefs, desires, and will in place of plain meaning and known rules of interpretation and construction. As Centinel observed, it empowered the use of “ingenious sophisms” to “extended the sphere of their jurisdiction over objects out of the line of their institution, and contrary to their very nature.” This allowed the Court to “mould the government, into almost any shape they please.” This is arbitrariness and the opposite of republican liberty and the rule of law.

The lack of control over the Supreme Court mixed with their arbitrary powers of interpretation, independency, and life-tenured appointments, made the Supreme Court “independent of the people, of the legislature, and of every power under heaven.” It placed the people under the ultimate dominion of this select conclave. In short, it made the Supreme Court an oligarchy.

History has proven most of the Anti-Federalists’ fears correct. That does not mean all is lost; not yet, at least. Anti-Federalists offer conservatives a lesson on the possibility of constitutional survival.

After the Anti-Federalists lost the political debate in 1788, most did not withdraw from public life. They accepted the Constitution’s federal structure and worked tirelessly—and, to their opponents, obnoxiously—within the state and federal governments to preserve their local lives and check and curb its consolidationist and oligarchic tendencies. To put it another way, Anti-Federalists did not despair; they did not condemn the Constitution as illegitimate, nor did they advocate for new modes of jurisprudence which only exacerbate the problem of judicial supremacy. While the Anti-Federalist attitude persisted, consolidation and judicial oligarchy, while not successful in every instance, were held at bay. Only after the passing of that mentality, did their prognostications of the Constitution begin to come true. 

In another recent essay on Law & Liberty, the picture heading the text shows a man holding a large cross and seemingly praying before the Supreme Court. The picture captures the beleaguered state of our constitutional order. The man sees himself as living in a national society that increasingly believes his religious beliefs are outmoded and dangerous, even as he and most of his neighbors attend church regularly; bereft of having his state governments deal with this issue; unknown to his Congressman or Senators; and, unable to move a cold and distant bureaucracy, his last remaining method of participation, and his last hope, was to beg for divine intervention upon five ivy-league educated, unelected, life-tenured lawyers. This is not how a healthy compound federal republic bound by the rule of law operates. It is high time for conservatives to accept that our long embrace of the Constitution’s vices—vices the Anti-Federalists warned about—has led to our celebrating a republic that remains one in name only; the reality is something vastly different.

Before we consign the Founder’s regime to memory and whispered longings, conservatives must first embrace—and actually listen to—those who best understood the Constitution’s vices. Conservatives must begin the arduous but necessary process of teaching what the Anti-Federalists knew: that free republicans do not live in a homogenized, consolidated nation. Instead, they respect the sovereignty of the individual state, actively participate in the exercise of its good government, practice the republican virtues of courage and vigilance, and maintain a healthy jealously over their rights. Once conservatives acknowledge that the Anti-Federalists were right about consolidation leading to oligarchy (in our case, oligarchy by judiciary), they can begin to understand how those same Anti-Federalists hold the key to ending their reign.

Reader Discussion

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on August 05, 2020 at 08:27:03 am

Well done! An historian who understands context and its relevance today. The realization that truth and progress are neither dialectical, Hegelian or Marxian, nor continuously improving, but the same, yesterday, today, forever, having already been revealed, and enduring the test of time despite momentary setbacks requiring a reconciliation back to heartfelt fundamentals to fulfill a perfection encouraged yet incomplete. Restoring and refining historical consciousness in political conscience, Constitutional conscience. The Anti-Federalists were well anchored in the working fundamentals of what became the United States. Where we are going is not progress, but regress, from a lack of understanding of what they took for granted, but not guaranteed, in their expressions of concern.

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gdp
on August 05, 2020 at 10:11:21 am

There is no question of the accuracy of the author's point that that there has been a gross usurpation of power by the judiciary. The chief architects were Warren and Brennan--but that usurpation has continued after their departure if at a slower pace. The question is how to roll back that power grab. To say that the Anti-Federalists were correct is hardly a solution. I frankly am not sure how to do so. Devising a way to proceed along that line is the most important single challenge facing American conservatives.

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John Braeman
on August 05, 2020 at 10:59:32 am

I appreciate the author's succinct diagnosis of the constitution's co-morbidity factors. All praise to the skeptical, prescient Anti-Federalists for predicting the historical irony that the founding was a set-up for death-by-slow-strangulation and for seeing 232 years ago that eventually the deadly knee on the country's neck would be the withering of federalism and the rise of judicial oligarchy. Benjamin Franklin's declaration that the founders gave us "a republic if you can keep it" can be seen now as a "beware the ides of March" warning from the Anti-Federalists.

Deneen and other like-minded critics of the founders attribute their fatal constitutional error as putting into law and setting into cultural motion the Enlightenment's moral disease of enabling the socially-disintegrative, politically-destructive forces of ungrounded, atomistic individualism. The essayist today speaks of two of the constitution's fatal flaws, but says they are not moral errors but flaws in the structure's design. First, is the founders' failure to account in their design for the inherent centripetal force of an extended, heterogenous nation, so that national concentration and the death of federalism would likely ensue. Secondly and uppermost in the essayist's mind, is the failure of the founders in flat-out missing the call when they said the judiciary was the least dangerous branch. They just got it wrong, flat out, ass-backwards wrong. In fact, the judiciary is now (and should have been seen then as) the most potent branch, the branch most given to wayfaring well beyond the bounds of its constitutional province, the branch most prone to trespassing on presidential, Congressional and state territory, poaching their separate constitutional authorities and trampling on their exclusive prerogatives. Yet, this "least dangerous" branch is, of all three branches and the 50 states, the least transparent as to its operations, the most surreptitious, cunning, stealthy and deceitful as to its motives, the most self-righteously self-serving and the most hypocritical as to its official behavior, given as it is steadfastly to paying ritual lip service to the orthodoxies of constitutional integrity, federalism and separation of powers, while routinely committing constitutional heresy against them.

The author appears to abjure, as an exercise in futility, the traditional aspiration of constitutional conservatives to work around these design flaws in constitutional structure by putting virtuous men and women to the task of constitutional service. Recent political history, as well as the wisdom of Madison's "If men were angels" lament, would seem to support the authors' skepticism as to the likely success of seeking more virtue in office holders.

Tweaking the structure offers some hope. E.g. a) limiting the Supreme Court's jurisdiction; b) resort to impeachment of Justices, a tactic doomed to fail in Congress but which will likely send a public message to the Court, which has shown itself, at least since FDR, Obama and CJ Roberts, to be highly responsive to political pressure and threat; c) cut the salaries and budget of the Supreme Court; d) restrict by statute the authority of all Article III courts to enjoin persons and activities beyond the parties in the case and beyond boundaries of their jurisdiction; e) assert the doctrines favored by Lincoln after Dredd Scott: that a Supreme Court decision affects only the parties to the case, that constitutionally each of the three branches is equally-empowered to interpret the constitution and that the Supreme Court is not primus inter pares on the matter of interpreting the constitution; f) work through the media, the Executive and Congress to defang the Supreme Court by depriving it of its self-anointed aura of moral superiority and to undermine the public's rote acceptance of the Court's self-appointed right of constitutional superiority.

But, at the end of the day, if we are to escape the fate of a bleak ending to the beautiful tale of our constitution, we must continue to exhort men to be angels, and we must hope that at least one generation in every few generations turns out to be so.

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paladin
on August 05, 2020 at 14:21:08 pm

A well written and bracing critique reflecting formidable, daunting, perplexing challenges. A lonely, solitary note only.

Justice Thomas's jurisprudence is arguably (certainly so by my lights) the most consistently well grounded - and coherent - jurisprudence on the court. That quality stems from the fact, ultimately, that his originalism and textualism in turn stem not from legal theory alone, nor legal theory coupled with a conservative, a Burkean sensibility and disposition. It additionally and in some respects more critically is grounded in a philosophical realism, an A-T, an Aristotelian-Thomistic natural law and natural rights grounding and realism that is neither dogmatically narrow nor positivist in its probity and general disciplines. This likewise gives him an internally coherent intellectual toolset, one that also coheres to principles invoked in the Declaration and then in the Constitution as conceived along essentialist and indeed originalist lines.

And again and for emphasis, all of this in a well grounded, broadly coherent framing.

Hence, critical aspects of the modern project itself are brought into view and called into question, brought before the bar of reason, the (purported) raison d'etre of the modern project.

In the main and not withstanding the rightfully sobering critiques of the anti-Federalists, the Federalists had it right. But it will be necessary, if a properly and better conceived federalism is first to survive the current set of troubles and then to thrive by virtue of being still better founded, to grapple with the modern project at the level of first things, including that would-be raison d'etre itself. To do so in fact requires a philosophical grounding along realist lines, though too without throwing out the baby with the bath water, e.g., in the manner of a Deneen or a Vermeule.

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Michael Bond
on August 06, 2020 at 11:47:22 am

Paladin and Mr Braeman are quite right.
I am reminded of the frequent comments of a former commenter at LLB, Mr R. Richard Schweitzer, who highlighted the problems associated with, if not endemic to institutions which over time, inevitably place their own institutional objectives and ambitions above their originally chartered purposes.
The Court has indeed become institutionalized.
AND John Roberts is the "Institutional Man" (apologies to William H. Whyte) whose apparent primary focus is to "preserve, protect and defend" the Institution of the Supreme Court (apologies to the Constitution).
Roberts machinations, at times characterized as judicial decisions, have, and will continue to bring the Institution of the Court into disrepute.

A concerted educational effort must be mounted by conservatives to demonstrate the Courts usurpation and arrogation of power.
Saying this, one recognizes that we may be spitting into the wind. So be it; such substance may be far preferable than other substances which have been sprayed upon our faces.

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gabe
on August 06, 2020 at 13:17:53 pm

Gabe, the futility of spitting into the Democrat wind is not nearly as disturbing as the consequence of the Democrats hurling feces into the nation's fan:)

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paladin
on August 09, 2020 at 15:33:33 pm

Certainly, it is far too late for all that. The electorate took the empire bait in 1960 and there is no going back now.

We’re going to be riding our errors all the way down.

The best we can hope for is to avoid a totalitarian regime, but that seems unlikely.

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EK
on August 07, 2020 at 09:56:21 am

It’s surprising that so many scholars, like Assistant Professor Coleman, ignore the U.S.-proffered purpose, which is stated in the preamble to the U.S. Constitution, the U.S. Preamble. Some scholars seem held hostage by elected society---a faction within humankind.

I adapt Coleman’s conclusion as indicated in the following: “Before we consign the Founder’s regime to . . . longings, conservatives . . . must begin the arduous . . . teaching . . . that free republicans do not live in a homogenized, consolidated nation. Instead, they respect the sovereignty of the individual [in his or her] state [and] actively participate in the exercise of [civic integrity according to a personally developed comprehension of the preamble to the U.S. Constitution negotiated by the 55 framers and published by the 39 signers, potentially terminating the Founders’ erroneous British-colonial traditions].”

The First Congress, including three 1787 non-signing framers---Eldridge Gerry, Caleb Strong, and Richard Henry Lee, imposed civil “freedom of religion” in the states by declaring that Congress would not legislate religion, temporarily distracting the people from the pursuit of civic integrity. Now, we, the “ourselves” of the 12th generation have the privilege to establish the U.S. under its purpose “in order to” encourage “our Posterity.”

My comprehension today of the proffered U.S. Preamble’s proposition to individual citizens is this: This U.S. citizen practices and promotes 5 public disciplines---integrity, justice, peace, strength, and prosperity, "in order to” enjoy responsible human independence among “ourselves” and encourage “our Posterity.”

I encourage every reader to develop his or her comprehension of the proffered U.S. Preamble so as to inform his or her civic, civil, legal, and spiritual integrity according to human-individual power, energy, and authority. A wonderful privilege of U.S. citizenship is that the U.S. Preamble’s proposition is practiced by choice.

By choosing to articulate his or her practice, the citizen qualifies himself or herself to hold Congress responsible to reform to U.S.-Constitutional-accountability. Otherwise, we’ll continue to lessen our individual freedom and decline to Congress’s abyss.

If I’m making sense to you, write to your congress persons and demand that they stop starting sessions with lame prayer and coercive pledge and instead recite the U.S. preamble verbatim in the earnest comprehension each member practices.

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Phillip Beaver
on August 08, 2020 at 20:03:09 pm

Great article. Cogent. Alas, our nation is too large, too diverse, too far gone to recover.

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Mike Moses
on August 11, 2020 at 07:57:49 am

Conservatives have been relying on the 10th Amendment to protect the people against Washington. The last five months, however, have shown that even this is a thin reed: state capitals are populated by mini-Mussolinis who act as though there are no limitations at all on their absolute power. And there seem to have been absolutely no challenges to them.

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Demosthenes

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.