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.
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.