The Anti-Federalists Warned That the Judicial Branch Would Imperil Liberty

Right after Chairman Charles Grassley set a Judiciary Committee vote on Brett Kavanaugh, I read that Democrats were expected to try to delay it until as late as September 27. That was consistent with Democrats’ “leave no stall untried” approach at his hearings and the subsequent Feinstein-FBI finesse. However, that date would also be ironic.

That is because the date marks publication of the first of the Anti-Federalist Papers in 1789. Meanwhile, Kavanaugh’s opponents are providing proof that the government abuses Anti-Federalists warned of, enabled by the courts, have come to pass.

What the Anti-Federalists Had to Say

Anti-Federalists, whose objections led to the Bill of Rights, feared that the Constitution’s checks would be undermined by expansive court interpretations, enabling a federal government with unwarranted and undelegated powers that were bound to be abused.

Writing as Brutus in the debates over the Constitution, he asserted that the Supreme Court would become a source of massive abuse because they were beyond the control of “both the people and the legislature.”

Among the most insightful of the Anti-Federalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention exceeded its authority.

Among the most insightful of the Anti-Federalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention exceeded its authority. Writing as Brutus in the debates over the Constitution, he asserted that the Supreme Court would become a source of massive abuse because they were beyond the control of “both the people and the legislature.”

Brutus argued that without true constitutional grounds for rulings, the Court would create them “by their own decisions,” through manipulating the meanings of arguably vague clauses. The court would interpret the Constitution according to its alleged “spirit” rather than according to its words (as enumerated rights, spelled out in the Tenth Amendment, would require).

Brutus’ Predictions

Brutus predicted that the Supreme Court would adopt “very liberal” principles of interpretation because there had never in history been a court with such “immense powers,” which was perilous for a nation founded on consent of the governed. It could easily empower “creative” rulings with “the force of law,” due to insufficient ability to “control their adjudications” and “correct their errors.” This failing would compound over time in a “silent and imperceptible manner,” through precedents building on one another.

Anyone who knows the history of reinterpretation of the separation of powers, the commerce and takings clauses, and much of the Bill of Rights, among other examples, knows that Brutus was right.

In summary, Brutus argued that overly broad judicial readings would empower justices to shape the federal government and its limits as they desired over time, regardless of the Constitution’s words, because the Court’s interpretations would remake them. And that would hand the courts the power to be the most dangerous branch, contradicting Alexander Hamilton’s Federalist 78 assertion to the contrary. Anyone who knows the history of reinterpretation of the separation of powers, the commerce and takings clauses, and much of the Bill of Rights, among other examples, knows that Brutus was right.

In our modern “Brutalized” world, among the greatest fears are judges who might move us back toward our Founders’ vision of citizens’ rights and limited federal power, toward treating the Constitution as being a higher law than subsequent distortions.

Back to Brett

Kavanaugh may become such a Justice. That explains Democrats’ “every dirty trick in the book” opposition to seating him and their campaign to make Americans “afraid, very afraid” that Kavanaugh might undermine some of the Constitutional abuses Democrats most wish to retain.

That is why trying to delay a Senate vote is just another tactic to kill his nomination. But if the irony of the date awakens people to the insights of the Anti-Federalists and the wide variance between Democrats’ desires and citizens’ Constitutional protections, it would provide the further irony of eviscerating their own position.