Congress and the Supreme Court

Author:Gary L. Mcdowell

Page 496

The delegates to the CONSTITUTIONAL CONVENTION OF 1787 confronted two fundamental problems in their quest to correct the political defects of the ARTICLES OF CONFEDERATION. First, they needed to bolster the powers of government at the national level so as to transform the "league of friendship" created by the Articles into a government with all the coercive powers requisite to government. Second, the Framers sought to create energetic but limited powers that would enable the new national government to govern, but in ways safe to the rights of the people. As JAMES MADISON put it in THE FEDERALIST #51, the task was to "enable the government to control the governed, but in the next place oblige it to control itself."

Their successful solution to this political problem was to separate the powers of government. Because the primary source of trouble in a popular form of government would be the legislative branch, the object was to bolster the coordinate executive and judicial branches, to offer "some more adequate defence.? for the more feeble, against the more powerful members of the government." The arrangement of checked and balanced institutions would at once avoid "a tyrannical concentration of all the powers of government in the same hands" while rendering the administration of the national government more efficient.

When the Framers examined the existing federal system under the Articles to determine precisely what it was that rendered it "altogether unfit for the administration of the affairs of the Union," the want of an independent judiciary "crown[ed] the defects of the confederation." As ALEXANDER HAMILTON put it in The Federalist #22, "Laws are a dead letter without courts to expound and define their true meaning and operation." Thus the improved science of politics offered by the friends of the Constitution prominently included provision for "the institution of courts composed of judges, holding their offices during good behavior."

But to some Anti-Federalist critics of the Federalist-backed Constitution, the judiciary was too independent and too powerful. To the New York ANTI-FEDERALIST "Brutus," the proposed judiciary possessed such independence as to allow the courts to "mould the government into almost any shape they please." The "Federal Farmer" was equally critical: his fellow citizens were "more in danger of sowing the seeds of arbitrary government in this department than in any other." With such unanticipated criticism, the Federalists were forced to defend the judicial power more elaborately than had been done in the early pages of The Federalist.

So compelling were the Anti-Federalist arguments that Hamilton saw fit to explain and defend the proposed judicial power in no fewer than six separate essays (#78?83) in The Federalist. His task was to show how an independent judiciary was not only not a threat to safe popular government but was absolutely essential to it. In making his now famous argument in The Federalist #78 that the judiciary would be that branch of the new government "least dangerous to the political rights of the Constitution," Hamilton made the case that the courts were "designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits...

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