The Rise of the 'Least Dangerous Branch'.

• Author: Leef, George
• Position: How the Court Became Supreme: The Origins of American Juristocracy

How the Court Became Supreme: The Origins of American Juristocracy

By Paul D. Moreno 346 pp.; Louisiana State University Press, 2022

After the drafting of the Constitution, there were great debates over ratification in the states. Among the issues raised by the Anti-Federalists was the scope of the power the proposed Supreme Court would have. To allay fears that the Court could become oppressive, Alexander Hamilton penned Federalist #78 in which he argued that under the Constitution, the judiciary would be "the least dangerous branch" and that judicial review would protect the people's rights against overreaching by Congress and the executive branch. The possibility of laws that infringed on those rights was foremost in many minds and judicial review was one of the ways contemplated to deal with it. (Another was having a "council of revision" to oversee all enactments and strike down those regarded as beyond the authority of the legislature. That was James Madison's preferred solution, but it wasn't adopted.) The Constitution was ratified and before long the Supreme Court began to exercise its authority to declare laws invalid.

In How the Court Became Supreme, Hillsdale College history professor Paul Moreno examines the development of judicial review. He writes: "A hundred years ago, progressives griped about a Court that had taken the side of capital on the 'social question'; half a century ago, conservatives bemoaned a Court that had taken the progressive side in the 'culture wars.' How did we get here?" Through a great deal of research, Moreno provides an answer.

English roots / As one would expect from a history professor, Moreno digs back in time for the origin of the idea that judges could overrule the decisions of lawmakers. He points to Dr. Bonham's Case, which dates from 1610. England's top jurist, Sir Edward Coke, ruled that Parliament could not allow the London College of Physicians to fine and imprison non-member Dr. Thomas Bonham, who had tread upon the guild's turf, because that would make the College a judge in its own case and thus contrary to reason. From that acorn grew the mighty oak of judicial review, both in England and, eventually, its North American colonies.

Late in the 17th century, John Locke argued for a constitutional system of limited government where judges could step in to protect the rights of citizens. Montesquieu would subsequently write that liberty depends on there being a division of power among the legislative, executive, and judicial branches of government. Those ideas took root in America. During the years of turmoil from 1764 to 1775, British officials relied on...