Liberty in America
columnist: rtbohan

Topic: Constitutional Issues
The Supreme Court As National Legislature: A Critique by James Madison

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More and more the Supreme Court is assuming, or having thrust upon it, the role of national legislature. james Madison, in Federalist # 10 explained why this is a bad idea

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by rtbohan
(Libertarian)
Wednesday, August 6, 2008

It seems to have been Hugh Black who explained the the Supreme Court was not made the court of final resort because it was infallible, but that it was infallible because it was the court of last resort.([link edited for length]) This is a powerful position, and the court has sometimes used it with respect for the Congress and the states, and sometimes almost arrogantly. But more and more the Court, and the Congress as well, seem to be viewing it as possessing the full legislative power of the United States.

James Madison is often referred to as "The Father of the Co nstitution", probably because he shorthand journal of the proceedings of the constitutional convention is the source of most of the information we have on the arguments which led to the creation of that document.  Madison was a friend and collaborator of Thomas Jefferson, but while their shared a belief in government by the people, Madison was more disturbed by the abuses of power and the weakness he saw in the United States under the Confederation, and he was an eager participant in the work to create a stronger and more centralized government for the country.

Madison and the other delegates to the constitutional convention realized that they could not simply create a strong central government and abolish the already existing state governments.  Instead, the document directed that the central government should have control of policy in certain broad areas, and that certain powers should be specifically prohibited to the states.  The problem they foresaw was the possibility of conflict where the division of authority was not clear, and where the state laws conflicted with the laws passed by Congress.  Madison suggested that in cases of conflict the Congress should decide whether the states of the central government had the power.

Most republicans, including Jefferson, objected to this proposal.  Aside from the objection that this system would make the Congress the judge in its own case, Jefferson added another objection:  "Prima Facie, I do not like it.  It fails in an essential character, that the hole and the partch should be commensuate, but this proposed to mend a small hole by covering the whole garment...Would not an appeal from the state judicaturess to a federal court...be as effectual a remedy and exactly commensurate to the defect?" {1}  Eventually Jefferson's argument prevailed in the convention, and all questions under the constitution were assigned to the Supreme Court.  It was this fact which led a number of people in the state conventions to ratify the constitution to vote for ratification, despite their original opposition.

During the fight for ratification of the constitution, Madison joined with two of his political opponents--Alexander Hamilton and John Jay--to write a series of articles explaining and defending the constitution.  These articles were all published over the pseudonym "Publius".  Altogether 85 articles in this series were published, 52 by Hamilton, 28 by Madison, and 5 by Jay.([link edited for length])

All of the articles on the federal judiciary were written by Alexander Hamilton.  But since we are considering the Supreme Court in its policy making (that is, legislative) role, we need to look at Madison's discussion of legislatures in number 10 of the series.([link edited for length]).  In this essay, Madison is primarily concerned with the superiority of a large republic (that is the centralized government of the United States) to a small republic(that is, the state governments).  But his arguments show as well why the Supreme Court should not be exercising legislative power.

The problem of government in free society, as Madison saw it was a tendency to factionalism.  But faction was natural to mankind, and the only means of preventing it were by destroying freedom or forcing all me to share the same opinion.  Madison saw the first solution as being worse than factionalism and the second as impossible.  The solution was to find a legislative mechanism which would limit the evils of faction, but allow men  to be free.  In a republic where the people were the ultimate rulers, this demanded certain conditions on the legislature.

His position was that men had different opinions, different economic interests and different political ideas.  A legislature was intended to make rules for the whole people.  The job of the letgislature, as he saw it, was to make laws which were beneficial and fair to all.  In a sense, the legislature was the judge of the best policy.  But no man, he said, should be the judge of his own case, and every legislatire enactment was made based on a judgment of what was best for society.  Since faction was natural and inevitable, this meant that the majority was acting as a judge in its own case.  This is why representative government was superior to democracy.  A faction might include a majority in either a mass meeting of citizens or in a representative legislature.  But incrasing the territory and the  number of citizens in the districts represented would allow for the representation of a greater number of interests and make it more difficult to create a majority, which was seeking to impose injustice.  The legislative body, therefore, must be large enough to represent all of the factions and interests in the population and small enough to avoid the confusion of the multitude.  That is why he blieved that the national legislature was the proper place to make the most basic laws.  While the combination of factions has made it more possible to create partisan majorities, the different interests find it difficult to impose their complete program.

 The purpose of this article is not to consider where the national legislature has failed, but to consider the Supreme Court in its role of ultimate legislaure.  Oliver Ellsworth, who bacame the second Chief Justice of the Supreme Court gave this description of the powers of the Supreme Court during the Connecticut Convention to ratify the Constitution: "The Constitution defines th...powers of the general government.  If the general legislature should...overlap their limits, the judicial department is a constitutional chec,  If the United States go beyond their powers...the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.  On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it so." {2} Under the first two chief justices, the Court did, in fact, perform that function.  This did not mean that the judges were not political. The judges appointed by Washington and Adams were all Fedralists who wished to expand the power of the Federal Government and restrict the power of the state legislatures.  The partisanship of Ellsworth is illustrated by his hurried resignation after the election of 1800 to insure that John Adams and not Thomas Jefferson had the power to appoint the third Chief Justice, John Marshall.

Under both John Jay and Ellsworth, the Supreme Court, while obviously political  had limited itself just as Ellsworth had predicted.  Marshall, faced with a Congress and a Presidency controlled by his political opponents, began the process of expanding the power of the Supreme Court as well as the national government in general.  He ruled by national laws and state laws unconstitutional not on the basis of the powers granted in the Constitution but on his own inferences from what was written in the Constitution.  His weapon in this battle continued to be declaring specific acts or parts of specific acts to be unconstitutional.  Since Jefferson failed in his plan to impeach him, Marshall's expansion of the Court's power and the national power was continued for more than thirty years.  It finally was checked in part by Jackson's refusal to enforce a decision of the Marshall Court.

Even after the Marshall era, the Court continued to wield great power, usually a "judicial reasoning", which meant a fanciful interprestation of various elements of the Constitution (e.g. the "necessary and proper clause, or the "obligations of contract" clause).  This continued until the notorious Dred Scott decision, in which Chief Justice Taney ruled that blacks were not entitled to sue because their rights had not been recognized in the constitution or the legislation of any state.([link edited for length])

In the late Nineteenth and early Twentieth centuries, the Court found a new tool for exersing legislative power.  This was the "discovery" of "substantive due process, first cited by Chief Justice Melville Fuller.  Substantive due process meant that the Court was no longer bound in its judgment of laws by whether the national or state legislatures had the authority to rule in a particular matter, and constitutional forms had been followed, but whether the Supreme Court.felt that the law was a good one.  This meant that the judges, as Madison had known, like all men had their own opinions on religion, economics and politics and their own financial interests at stake, became the judges in their own cause and a Super Legislature.  The advocates of "substantive due process argued that this allowed the Court to bring into consideration the laws of "natural justice". and the opinion of mankind.

Of course, the strict constructionists argued, correctly, that the Supreme Law of the Land is the Constitution and the laws passed by Congress and the treaties made by the United States.  For l;egal purposes, there is no "higher law", either divine on natural.  As Justice Holmes remarked,"When a law of a state legislature comes before the court, I look to see if it involves a power granted to the federal govenment or prohibited to the states by the Constitution.  I may think that it is a good law, a bad law, or ever a silly law.  But if the legislature has the power to pass it, I say let them have their law."

During the Roosevelt administration, the Supreme Court was unusually active in declaring laws passed by the Congress to be unconstitutioal under the rule of substantive due process.  After his re-election in 1936, Roosevelt proposed a constitutional amendment which would allow a President, for every justice over the age of 70 who did retire,, to appoint an additional justice up to a total of fifteen justices.  The plan was derided by opponents as a "Court packing" plan and defeated.  President Roosevelt lost some of his support as a result, but the older justices, offered the opportunity to retire on full salary, began to resign, and Roosevelt was able eventually to have his appointees dominate the court.

In fairness to Roosevelt, it must be conceded that he felt, rightly, that the Court was invalidating laws for political rather than constitutional reasons and acting as a legilature rather than a court.

Since Roosevelt's time, the Court has expanded its legislative activities, in the integration cases assuming an enforecment role (by ordering bussing) and in the abortion cases, attacking the first amendment right of free speech.  The Court, as its defenders argue, does change over time, and may in time be responsive to popular demand.  Conservatives, Liberals, Centrists and libertarians, all have some opinions of the Supreme Court that they approve of, and all have some decisions of the Supreme Court that they despise.  The question is not whether the Court has been right or wrong in its legislative decisions, but whether the court is a proper legislative body.

Madison believed that the first and most important check on the legislature in a republic was the fact that the members were subject to regular elections.  The national government made this election both direct, in the House of Representatives, and indirect, by the state legislatures, themselves subject to popular election, in the case of the Senate.  The President, made a part of the legislative process through the veto powere, was indirectly elected by the people through their selection of electors either by direct vote or through the state legislature.  (It is only in this decade that one state--Maryland--has chosen to let the voters in other states choose its electors).

But the Supreme Court Justices, once selected by the President and approved by the Senate, are not subject to further judgment, direct or indirect, by the voters.  Once on the Court, they serve until death or retirement.  This would be both proper and desireable if the Supreme Court remained a purely judicial part of the government.  But it is not acceptable in the legislature of republican government.  The argument has been made that, since justices do not live forever, over time a change in the Court's rulings can be made by the appointment of new justices by the elective branches of the government.  But if justices can be replaced only on death or retirement, and death is chancy and retirement can be timed by serving justices  (like Chief Justice Ellsworth) to assure that a change of justices does not mean a change of the factional make-up of the court, the influence of the people is extermely tenuous.

Madison argues that a proper legislative body must be of a certain size to adquately represent diversity of opinion and interest.  The Supreme court has now, and has had since the Civil War, nine members.  For a judicial body this is a workable number, and one guaranteed to provide at least a majority opinion on any case that comes before it.  As the primary legislative body of a republic of over three hundred million people, it is absurd.

Madison felt that the territory and population represented by legislators should be great enough that the legislature could not be dominated by the beliefs and policies of a single faction or interest.  Of course, all members of the Supreme Court are lawyers (as are a majority of the members of Congress), but while this is necessary for a judicial body, it is a travesty in a legislature. 

At the present time, the Court is making most of its rulings on a five to four vote, which indicates that factions is particularly dominant in the legislative branch.  This has the current disadvantage of making the one "swing" justice on the court the only person who matters.  The idea of Justice Kennedy as the sole legislator is no more attractive than the idea of George W. Bush, or John McCain or Barack Obama as the sole legislator.

After this year's election, there will be a new President, who may or may not have an opportunity during his term in office, to appoint one or more justices.  Does anyone believe that either Barack Obama or John McCain will make the variety of interests represented on the Court a basic factor in his nominations?  Does anybody believe that the Senate, whether controlled by Democrats or Republicans will do so?

What is growing in the United States is the idea that any decision by the Supreme Court, and only a decision of the Supreme Court, confers a "Constitutional" right to anything.  What is growing in the United States is the believe that a Supreme Court ruling, and only a Supreme Court ruling, is "the law of the land."

But, as Madison's analysis in the Federalist shows, the Supreme Court, however valuable as a judicial body, fails as a proper legislature for a republic in every respect.  It is time to amend the constitution to restrict the Court to its proper function, or, if it persists in legislating and enforcing its own laws, to make it a more representative body.

{1}  Quoted in John R. Schmidhauser, Constitutional Law in American Politics, Monterrey, 1984, Book/Cole Publishing Company, p. 21.

{2{ ibid. p.23.

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2008 rtbohan, all rights reserved.
Published: Wednesday, August 6, 2008
Last modified: Wednesday, August 6, 2008

The views expressed in this article are those of rtbohan only and do not represent the views of Nolan Chart, LLC or its affiliates. rtbohan is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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