The Least Threatening Institution

The Founders’ View of the Supreme Court

Samuel Stone

Following the death of Supreme Court Justice Ruth Bader Ginsburg, the national conversation became completely focused on the nomination of the next justice. Perhaps even more striking is the polarization and utter vitriol seen on both sides within this debate. Unfortunately, this is not the first time America has seen such division and concern over Supreme Court appointments. In 1987, the nomination of Robert Bork brought a wave of ad hominem attacks on the nominee. More recently, in 2016, the hearings over the nomination of Justice Kavanaugh saw a litany of brutal attacks levied against now-Justice Brett Kavanaugh. These increasingly contentious reactions can be traced directly to the influence that the Supreme Court exercises over the lives of everyday Americans. For this reason, modern presidential elections often are framed as a fight in order to secure control of the Court for each side for years to come. 

The dominance of the judiciary in today’s world would shock the founding fathers. Although they recognized the judicial power as an essential part of government, the founders believed the Supreme Court to be the weakest, least threatening institution in the national government. The practical implementation of this belief in the limited power of the courts is laid out in the construction of the United States Constitution. The first article of the Constitution outlines the powers of the legislative branch, reflecting the framers’ belief that the legislature was the most dangerous branch of government. This deep distrust arises from the founders’ opposition to the actions of  Parliament in the years prior to the American Revolution. To many colonists, the actions of Parliament went beyond their power. The Second Continental Congress made this view clear in their Causes and Necessities of Taking up Arms, explaining that Parliament has worked toward “enslaving these colonies by violence” in violation of ever “truth, law, or right.” Parliament’s ability arose from their possession of the lawmaking power. Because the King failed to provide a check on Parliament, they were free to pass any law they desired. Once the self-control of the individual was gone, nothing stopped Parliament from acting tyrannical. This historical example remained  in the forefront of the framers’ minds  thus influencing their wariness toward the legislative branch. They realized that any government could fail prey to this danger. 

This danger was recognized during and following the Revolution as several state legislatures overstepped their lawful powers. As James Madison shows in his “Vices of the Political System of the United States,” an out of control legislative branch can easily become tyrannical. Madison spends much of this work laying at the various modes through which the state legislatures were causing problems. In the state legislatures  Madison writes, “We daily see laws repealed or superseded, before any trial can have been made of their merits.” Madison continues to explain that these laws “become a snare” to citizens and foreigners alike. From here, Madison explains how the laws themselves in many states are unjust by the fact they are made for the lawmakers good as opposed to the community. Law is made for the common good of a society and as such any law made for the private is tyrannical. The threat of such tyrannical legislating is a universal concern for all governments. 

With these issues in mind, the framers tailored the Constitution in order to temper the ability of the legislative branch to become tyrannical. They felt they had reason to fear the legislature over the other parts of government. Because of its role as the beginning of the political process, the legislative branch has a more direct impact on the lives of the citizens. As Madison shows, the lawmakers can make laws that favor their own private interests to the detriment of the rest of the country. This ability to directly threaten the freedom and liberty of all the nation led the framers  to carefully construct their powers in the Constitution. 

Of the remaining two branches, the founders recognized the executive as most dangerous. In the Revolution, the American people won independence from the tyranny of a King, who acted as an executive tyrant. While Parliament was cause for concern for the founders, King George rose to the level of tyrant  due to his aquenice to Parliament. As the Declaration puts it he “combined with others to subject us”to the tyrannical actions of Parliament. The Declaration contains within it many ways in which the executive power can become tyrannical. For example, the king “dissolved representative houses repeatedly for opposing, with manly firmness, his invasions on the rights of the people.” The King was able to prevent the people’s representatives from carrying out one of their main functions. In his failure to take action, he exercised a tyrannical power over the people without check. This itself was cause enough for alarm but an examination of the function of the executive power was cause for still greater caution. 

Because the executive power enforces the laws and is capable of using coercive force when necessary, actions taken upon the citizens themselves can easily become tyrannical. Further, the framers placed control over the military in the hands of the executive. While this provided safety in many ways, it also established a clear danger to the rights of citizens. The ability to attack the whole citizenry is in many ways analogous to the potential for tyranny. 

The fear of an unchecked executive led the framers to again delineate the powers of the executive branch. This includes most notably the power over the military and making treaties with other nations. From this, one can see the powers of the President  are as compared to Congress. Yet, possessing command of the military and the branch tasked with enforcing the law means the executive branch directly affects the lives of citizens. If it were to become tyrannical all sorts of ills would follow. Due to this consolidation of powers in two branches, the framers were greatly concerned that the Legislative and Executive would eventually seek to usurp each other. This was an issue because, as Montesquieu points out, the unification of any other powers would lead to tyranny. This due to the fact that one who could write the law and choose on whom to enforce it would never arrest themselves. Furthermore, they could always tailor the law to favor them and their friends. The founders agreed with this concern. John Adams expresses this concern in his “Thought on Government” in which he explains that the two branches must have the ability to check  each other. Without checks, “these two powers will oppose and encroach upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.” The absence of writing on the judicial power shows that it was not perceived as a power with the ability to wrest control from the other two powers. 

Of the three articles that lay out the power of the national government, the shortest is that of the judiciary. Article III of the Constitution creates the courts and lays out their jurisdiction. The fact that the court serves “during good behavior” makes it distinct from the other branches. Each of the other two branches has fixed terms before they are up for reelection. The fact that the framers were willing to allow judges to serve for life points to their belief in its relatively weak status brought about by the Supreme Court’s limited influence. 

The framers’ conception of the role of the Supreme Court explains why the framers of the Constitution viewed it as the least threatening branch. Hamilton writes in Federalist 22 that the court is meant to “define [the laws’] true meaning and operation.” This is necessary, he writes, because the laws can only be written to be general. As a result, particular events may not be covered by the law. In such cases, an impartial judge is needed in order for justice to be served. The Supreme Court was also meant to declare void those acts which were repugnant to the Constitution. As Hamilton points out, “The interpretation of the laws is the proper and peculiar province of the courts.” Here the two functions of the courts are laid out. These powers are to have the final say in cases under which they have jurisdiction and to declare laws void that violate the Constitution. 

As a result of  these two powers, the judicial branch as originally conceived did not hold as much sway over American life. As Abraham Lincoln explained in his first inaugural address, rulings from the Supreme Court are binding only upon those involved in that particular case because the ruling of one case does not establish precedent for all time. Rather, it may be overruled and “never become a precedent for other cases.” In addition to this, declaring that a law violates the Constitution is simply a means of interpreting the fundamental law of the land. As in any case in which an inferior conflicts with the superior, the superior must prevail. Even with this, the Court has no power to pass laws of its own and can simply react to the act of the legislative branch. This view of the Court severely limits the power and influence it has over the people. With such a limited influence the Court was never perceived to be a threatening entity. 

The framers of the Constitution viewed the Supreme Court as a body of limited influence. Although the judiciary was a necessary part of government, it was not viewed as a branch with the potential to become tyrannical like the other two branches. They simply interpreted laws and made rulings that affected those concerned. In contrast, the legislative and executive had the power to make decisions which affected the whole country. For this reason, the judiciary was not seen as a great threat. In many ways it was seen as an essential part of government, but the least important of the essential parts. This perception was one of the reasons the great fight to control the Supreme Court was foreign to the founding generation. It is also why the founders could never have imagined an election being decided by who a president might choose to fill a vacancy on the Court.

About the Author

Samuel Stone is a Senior Contributor for American Discourse and a Hillsdale College graduate who majored in politics. He currently is getting his masters from St. John’s College.

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